Disabled People: Social Care

Lord Ashley of Stoke: asked Her Majesty's Government:
	Whether the forthcoming Green Paper on social care will contain a commitment to ensure that disabled people will be free to move between local authorities without risk of loss of their social care package.

Baroness Thornton: My Lords, a Green Paper on the future of care and support will be published early next year. The public debate is informing several key strands of policy discussions, one of which is about the portability of care packages and addresses the question of local flexibility versus national consistency. It would not be appropriate at this stage to pre-empt the outcome of the debate or the policy analysis by making specific commitments about the Green Paper.

Lord Ashley of Stoke: My Lords, I thank my noble friend for that reply. If we accept the principle that she has just explained, that we can make no specific commitment while a Green Paper is being considered—not even debated, but considered—the Government and both Houses of Parliament will be paralysed for years, as these things take time. Having pledged ourselves not to do that, the Government cannot act, and nor can this House or the other place. It would obviously be unacceptable to tie the Government's and Parliament's hands like that.
	The present system is that anyone can move house if they wish to have a better job, or whatever, but if disabled people want to move house, the new local authority will probably refuse to allow the payment if it disagrees with the previous local authority. Given that that is the case, there is nothing we can do about disabled people that would change the whole system. My noble friend wants to help disabled people, as she made very clear in Committee on the Health and Social Care Bill. Does she not agree that the way to help them is to provide them with a change of system in place of the existing one?

Baroness Thornton: My Lords, my noble friend is completely right. The whole House knows that he is a leading and very successful campaigner in this arena. My noble friend knows, as he acknowledged, that the Government have not stood still while waiting for the publication of the Green Paper. We have had a 45 per cent increase in local council services and extended the right to personal budgets so that people can have control over their own care.
	The issue of portability of care to allow disabled people to move from one part of the country to another is a fundamental component of the system being addressed in the Green Paper review. It can be addressed only as part of the wider review, because of its implications for local and national accountability, democracy and the control of budgets. However, that does not mitigate the need for local authorities to have a duty to ensure that, when a disabled person moves into their area, a proper assessment is made of their needs and that those needs are addressed.

Baroness Finlay of Llandaff: My Lords, has the department received a report from the Commission for Social Care Inspection on the eligibility criteria for fair access to care services? Will the process to which the Minister refers include children as well as adults in receipt of packages of care?

Baroness Thornton: My Lords, Fair Access to Care Services is, as noble Lords will know, a system to help local authorities to set the criteria for the provision of care services. The Government recognise—indeed, noble Lords have brought it to our attention—that some councils have tightened their eligibility criteria for adult social care. I am afraid that I will have to write to the noble Baroness about whether children are included in that. We are concerned that it means that some people have been denied the care that they need. The Care Services Minister asked the Commission for Social Care Inspection to undertake a review and we are expecting to publish its report at the end of this month.

Baroness Wilkins: My Lords, does my noble friend agree that this issue is a major barrier to disabled people's employment and educational opportunities? If the Government want to increase social mobility, it must be resolved quickly. What interim measures will the Government take given the time that it will take to implement longer-term reform through the Green Paper on adult social care and subsequent legislation?

Baroness Thornton: My Lords, my noble friend is absolutely right. During the recent passage of the Health and Social Care Act we recognised that it is important to allow disabled people to have the same rights—to move house, to go to university or whatever it is that they need to do. Some of the measures that the Government have already taken include providing extra resources at local level and ensuring that local councils properly assess people who have moved into their areas. But the long-term issue, which we need to address, is that in 20 years' time, 1.7 million more people will need care. That has to be addressed on the basis of the Green Paper and a very wide discussion.

Baroness Gardner of Parkes: My Lords, as the previous speaker raised the matter of employment, has the Minister taken into account the position of those disabled people who have remitting disabilities who go in and out of needing full-time care? They face great difficulties in getting help when the time comes for them to return to full-time care because of the great delays that occur. Is something being done to deal with that problem?

Baroness Thornton: My Lords, the noble Baroness raises an important point. The consultation process involves the public and stakeholders—indeed, I am attending a public consultation this weekend—and precisely that issue has been raised. It is part of our consideration in the preparation of the Green Paper.

Baroness Barker: My Lords, in their preparation of the Green Paper, are the Government calculating the savings to local authorities of people moving closer to their relatives who assist with care and daily living?

Baroness Thornton: My Lords, that is exactly the kind of thing that the Green Paper will address, because it is very important.

Lord Rix: My Lords, last week I chaired the Learning Disability Coalition meeting discussing the Green Paper on adult social care. Will the Minister confirm that adult social care for those with a learning disability will receive the utmost consideration?

Baroness Thornton: My Lords, the noble Lord, with his record, knows that that is the case. Along with other noble Lords he has helped to ensure that. For example, the noble Baroness, Lady Campbell of Surbiton, who is not in her place, provided us with short articles that helped to inform the themes that we are discussing in the process of creating this Green Paper, as did the noble Lord.

Baroness Golding: My Lords, my daughter had a care package in Hull last year. She then lost both legs and moved to Staffordshire. She is still fighting to get as good a care package as she had in Hull. Will the Green Paper address that problem? Certainly, nobody who loses their legs should have a worse care package.

Baroness Thornton: My Lords, my noble friend, who gave me notice of her question, is completely right and I undertake to look into that case. It is exactly the kind of situation that the Green Paper, which will examine what future planning and provision we need to make, is designed to address.

Armed Forces: Pensions

Lord Craig of Radley: asked Her Majesty's Government:
	Why they intend to abolish the Pensions Appeal Tribunal in England and Wales, which hears appeals from Armed Forces personnel, their dependants and veterans.

Lord Bach: My Lords, we are abolishing the PAT, as its functions will be transferring into the first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007. It is proposed that the jurisdiction will move in its entirety into the war pensions and Armed Forces compensation chamber, a stand-alone chamber in the new tribunal. Members of the existing tribunal will be transferred into the chamber in the first-tier tribunal to continue their work in the same way as at present.

Lord Craig of Radley: My Lords, I thank the Minister. During negotiations with the Ministry of Justice, Bridget Prentice, the Minister, while proposing the setting up of the Armed Forces chamber, strongly wished it to be recorded that the functions of the PAT England and Wales should be transferred to the social entitlement chamber. This was widely rejected by the PAT membership, the experts and by the service charities—those who support the appellants. Given this, and the fact that PATs in Scotland and Northern Ireland continue unchanged, why have the Government decided that they should not retain the major part of the PAT, which, since 1919, has been the statutory independent body serving those who appeal against awards for injury and trauma?

Lord Bach: My Lords, I declare an interest as a member of the Lutterworth and District branch of the Royal British Legion. I pay tribute to both the noble and gallant Lord and my noble friend Lord Morris of Manchester, in particular, for they way in which they have approached this subject up to now.
	I say to the noble and gallant Lord that the Government's position is solidly that the tribunal should move into the first-tier tribunal, but that it will be in a stand-alone chamber: the war pensions and Armed Forces compensation chamber. That is, as I understand it, what the noble and gallant Lord was arguing with some force over the past months. That will give it its own rules, procedures and expertise. Its membership will of course always include someone who has been in the services, as at present.

Lord King of Bridgwater: My Lords, perhaps I should declare an interest as member of the Bridgwater branch of the British Royal Legion; it had not occurred to me previously that it was necessary to do so. The Minister may be aware that many noble Lords have, I suspect, received an urgent letter from the Army Benevolent Fund, expressing its concern about the continuing stream of casualties coming out of Afghanistan, in particular, and the challenges that they will face in their aftercare after their initial treatment has been met. Many of these cases will end up in front of what would have been the much-respected Pensions Appeal Tribunal.
	I know that the Minister, with his previous experience in the Ministry of Defence, will wish to approach these issues with great sympathy and understanding, but I do not think that this could be a worse time at which to change the previously well respected arrangements. I ask the Government to think again on this issue.

Lord Bach: My Lords, we are not changing the arrangements. The PAT will be exactly the same tribunal, but it will be inside the first-tier tribunal. It will have the same make-up each time. It will have its own rules and procedures. It will not be part of a social entitlement chamber. It will continue to do its excellent work. The Government have made a number of concessions on this, owing to the strong representations that have been made. It is quite wrong to suggest that the PAT will be in any way lessened or less effective when it becomes part of the first-tier tribunal.

Lord Morris of Manchester: My Lords, for parliamentarians there is surely no more compelling duty than to act justly to the men and women who, alone in this country, contract with the state to lay down their lives in its service. Is my noble friend aware that this is the motivation of those, most notably the noble and gallant Lord, who have worked so hard radically to improve the statutory instruments as first proposed? Is he aware that they were drafted and in print even before the period for consulting the war disabled and bereaved had expired?
	That we have come so far since then is due not least to the constancy of my noble friend Lady Royall in working to facilitate a just outcome. To that end, can we be assured now by my noble friend Lord Bach that the department will be resolving the still outstanding points with all possible dispatch?

Lord Bach: My Lords, I am grateful to my noble friend for what he said, in particular in relation to my noble friend the Leader of the House, who has, indeed, played an important role in these discussions. I agree with him completely that nothing can be more important than properly looking after and compensating those who are prepared to sacrifice their lives for the rest of us and for our freedoms. I can give him the assurance that he seeks; we are striving to find a way whereby the great services that the PAT has performed for ex-servicemen continue to the satisfaction of both the ex-servicemen themselves and the bodies, including the Royal British Legion, that represent them.

The Countess of Mar: My Lords, one is tempted to ask, "If it ain't broke why fix it?". May I ask the noble Lord whether the Administration will benefit from the proposed name change—that is how it sounds—or will it be exactly as it was before?

Lord Bach: No, my Lords, the users will benefit. Moving to a unified tribunal means that users will be able to appeal both against the entitlement to an award and against the assessment of an award. In the present PAT there is a right of appeal only against entitlement. Challenges to assessment have to be made by way of judicial review. That is one way in which users—they are, after all, the people who matter—will gain by this change.

Lord Lloyd of Berwick: My Lords—

Lord Lee of Trafford: My Lords—

Lord Hunt of Kings Heath: My Lords, it is the turn of the Liberal Democrats.

Lord Lee of Trafford: My Lords, as the noble and gallant Lord, Lord Craig, has said, the Pensions Appeal Tribunals in Scotland and Northern Ireland will remain. Is there any danger of discriminatory treatment with cross-border bases and deployments?

Lord Bach: My Lords, as the noble Lord knows, the PATs in Scotland and Northern Ireland have always been legally and administratively different from the PAT in England and Wales. We accept that there is concern that the new arrangements may somehow change that balance. The appeal rights will be the same in all jurisdictions. Because of the concern the tribunal service proposes to establish an advisory steering group within three months of the jurisdiction being transferred to the unified system. This will not only help to ensure the identity of the jurisdiction is retained; it will also enhance and strengthen it. We hope that members of that group will come from the PATs in Scotland and Northern Ireland and from the new unified tribunal.

Bank of England

Lord Barnett: asked Her Majesty's Government:
	When the Chancellor of the Exchequer last had an official meeting with the Governor of the Bank of England; and what was discussed.

Lord Davies of Oldham: My Lords, I congratulate my noble friend Lord Barnett on his birthday. I wish him a very happy day and express the hope that his supplementary will make me happy, too. The Chancellor of the Exchequer regularly has meetings with the Governor of the Bank of England to discuss a wide range of issues.

Lord Barnett: My Lords, I thank my noble friend for his kind wishes and his not unexpected reply. Has he seen the report in the Times, which occasionally gets it right, that there is tension between the governor and the Treasury? That is perhaps not surprising given his recent views. Is it not hard to believe that the governor is still talking about—or has been talking about—increasing interest rates? I do not know whether he consulted his committee in deciding recently to cut them, which we were happy to see. I hope that my noble friend agrees that we are living in unprecedented times when the Chancellor of the Exchequer and the Prime Minister are telling major international banks what to do. Will my noble friend ask the Treasury to tell the governor what to do; namely, to cut interest rates in a big way? That is urgently needed. If he will not do that, will he at least have discussions on the matter?

Lord Davies of Oldham: My Lords, I knew that I would be grateful to my noble friend. Of course these are difficult times and each of the key actors on the scene of saving the financial system and assisting certain banks has a different viewpoint on the contribution needed in the longer-run economic perspective. My noble friend will appreciate that the Government do and will respect the independence of the Bank of England. It is for the Monetary Policy Committee to reach its judgments. In reaching those judgments, it will take into account the fact that certain aspects that contributed to the recent rise in inflation, particularly world oil prices and world food prices, look as if they have somewhat reduced.

Lord Newby: My Lords, I shall press the Minister further on that point. In the real economy, the biggest single thing that will reduce the depth of the recession is a major cut in interest rates, because that affects both consumers and businesses. Will the Chancellor not only make that case to the governor but remind him that the Bank of England Act enjoins the Monetary Policy Committee to take account of levels of economic activity and unemployment when taking its decisions?

Lord Davies of Oldham: My Lords, as ever, the noble Lord is well informed. He is absolutely accurate about that aspect of the Bank of England Act. He will recognise that interest rates were cut by half a per cent only a short while ago. That is an index of the concern about the difficult times ahead for the British and the world economies. He will appreciate the extent to which there was co-ordinated action across central banks for the reduction in interest rates. That is the way in which we see the international position improving.

Baroness Noakes: My Lords, we completely support the Government in maintaining the independence of the Monetary Policy Committee and we completely resist any calls from the Liberal Democrats to suspend its independence. That is extremely important. May I take the Minister back to a question that he did not answer yesterday? He was asked what the impact would be on money supply and inflation of yesterday's funding of the banks in the bail-out. Today, we have heard that CPI inflation is now at 5.2 per cent, which is more than two and a half times the Bank of England's target. Will the Minister, who did not answer the question yesterday, at least say whether the Bank of England's job is now harder or more difficult following yesterday's government action?

Lord Davies of Oldham: My Lords, these are exceptional times and the Governor of the Bank of England is facing difficulties with regard to his part in the management of the economy. Who could doubt that in these exceptional circumstances? These are circumstances that I had hoped were exceptional enough for us to have a constructive question from the Opposition for a change, rather than constant criticism. Let me make it absolutely clear that, as I have indicated, certain aspects with regard to international inflation are moderating to a degree. When the noble Baroness berates the present rate of inflation, she will know that it is still comfortably below the average of the years in which the Opposition were last in power.

Lord Peston: My Lords, we are indebted to my noble friend Lord Barnett for tabling this Question, which enables me to get something off my chest. We are living through the worst economic crisis in living memory. I looked at the forthcoming business to see when we were going to have a whole day's debate on the subject, but I looked in vain. We have been badly let down by the usual channels, which I regard as an absolute disgrace. Will my noble friend have a word with our share of the usual channels, to draw that to his attention? Will he point out to him that, if we have such a debate, he will have a rare and rather pleasant experience, as he will hear a number of speakers from this side cogently and strongly supporting the Government?

Lord Davies of Oldham: My Lords, I look forward to that debate with the keenest anticipation. I should have thought that three Statements in the past seven parliamentary days plus the opportunity for questions almost every day have at least kept us up to pace with the changes occurring with regard to the rescue of the financial system, but I am only too happy to indicate to the usual channels that there is considerable pressure for a debate on these issues, in which a great deal of constructive work will no doubt come from all parts of the House, including, I hope, from the Official Opposition.

Russia and Georgia

Lord Hylton: asked Her Majesty's Government:
	Whether Russian forces have fully withdrawn from all parts of Georgia, other than South Ossetia and Abkhazia, in accordance with the agreement made with the European Union.

Lord Bach: My Lords, in our view, Russian forces have withdrawn from the zones adjacent to South Ossetia and Abkhazia and are no longer in the rest of Georgia. There has been some discussion about the checkpoint at Perevi, which, some believe, may lie a short distance beyond the de facto border and into the rest of Georgia. However, the EU monitoring mission initially judged that this checkpoint lies on the de facto border line. We do not believe that the checkpoint is strategically significant.

Lord Hylton: My Lords, I thank the Minister for his reply. Has he dealt with the possibility of a grey area to the east of South Ossetia and is there an obligation on Russia and Georgia to withdraw to the positions which they occupied on 7 August? Finally, will the Government do their level best to ensure that there is the fullest co-ordination between the various observer and peacekeeping groups which are under UN, EU and OSCE mandates?

Lord Bach: My Lords, the noble Lord is right to raise that last issue. Co-ordination among the EU, OSCE and UN missions is crucial to avoid duplication or mishaps. We have spoken to all parties to emphasise the particular importance of effective co-ordination on the ground. UK personnel in those missions have played a valuable role in helping to ensure that proper co-ordination takes place.

Lord Howell of Guildford: My Lords, does the apparent Russian withdrawal include withdrawal from the area to the south of South Ossetia, Akhalgori, where there is a mixed population and where the Russians appeared to have been until yesterday? On a broader issue, we have heard the American Defense Secretary saying that we should be committed to a NATO membership action plan for Georgia. Is that Her Majesty's Government's policy, and will we be able to deliver NATO's full obligations in the Caucasus if we go that way?

Lord Bach: My Lords, on that last point, there is a long way to go before we get to that stage. On the noble Lord's first question, although we welcome the Russian withdrawal from the buffer zone—which is a significant step towards the commitments that the Russians made—withdrawal to the positions held by Russian forces prior to 7 August has not taken place. Therefore, the conditions of 12 August and 8 September under the Medvedev-Sarkozy agreements have not yet been fully met.

Lord Roper: My Lords, in view of what the Minister has just said, does he agree that these matters should be raised at the meeting tomorrow in Geneva, so that full implementation of the agreement can be discussed?

Lord Bach: My Lords, I agree absolutely with the noble Lord. As he said, the meeting is to begin in Geneva tomorrow and we support efforts by the EU special representative dealing with the crisis in Georgia, Pierre Morel, to prepare those talks.

Lord Rea: My Lords, my noble friend may not be aware that I visited Abkhazia in August last year. It became clear to me that the Abkhazians, who are culturally and linguistically different from the Georgians, would be very unlikely to allow the Georgians, who left Abkhazia, or were chased out, in 1993, back to their homes unless Georgia recognised their independence. Is it not time to recognise that the independence of Abkhazia and South Ossetia, like that of Kosovo, is a fait accompli and that the Georgians should be discouraged from unrealistic aspirations to regain those territories? This would not be appeasement but realism and would point the way to a lasting peace in the region.

Lord Bach: My Lords, I am afraid that I cannot agree with my noble friend in the slightest. The differences between Kosovo and Abkhazia and South Ossetia could not be greater. As one commentator put it, the international community's response in Kosovo was an attempt to respond to the evils of ethnic cleansing. Frankly, we believe that Russia's recognition of the separatist regimes of Georgia risks entrenching ethnic division and makes the return of refugees even more difficult to achieve. If there were to be independence on these terms, it would be a violation of Georgia, which is of course a democratic country.

Lord Hannay of Chiswick: My Lords, does the Minister not agree that the failure of the Russians to fulfil the agreement of 8 September, which he has confirmed they have not done by not withdrawing to the positions they held in early August, must be a germane factor for the European Union in deciding whether to resume negotiations on a policy co-operation agreement? Will he accept my support for what appears to have been the Foreign Secretary's position in the Council yesterday, saying that the time was not yet ready for that?

Lord Bach: My Lords, I am grateful for the noble Lord's support for the Foreign Secretary's attitude. He reads the Foreign Secretary's mind and the Government's policy on this well. As the House will know, meetings on a new agreement between the EU and Russia were postponed on 1 September by the European Council in response to Russia's actions in Georgia, and that postponement still holds.

Lord Bridges: My Lords—

Lord Hunt of Kings Heath: My Lords, we have reached the 30th minute.

Business

Lord Bassam of Brighton: My Lords, my noble friend Lord West of Spithead will now repeat the Statement on the Counter-Terrorism Bill made by the Home Secretary in the Commons last night. I should also advise the House that we are likely to sit late tonight in order to make necessary progress on the Committee stage of the Planning Bill. As ever, I am sure that I record the wishes of the House in expressing especial gratitude for the forbearance of all staff of the House who will be affected tonight.

Counter-Terrorism Bill

Lord West of Spithead: My Lords, with the leave of the House, I shall repeat a Statement made yesterday evening by my right honourable friend the Home Secretary in the other place. The Statement is as follows:
	"Mr Speaker, I come to the House this evening to set out the Government's position on the Counter-Terrorism Bill. The provisions in this Bill have always been about protecting the British people from the serious threat we face from terrorism. My approach has always been to strike the right balance between protecting national security and safeguarding the liberty of the individual. That balance is a precious and delicate one, and it has meant—quite rightly—that our proposals on pre-charge detention have been the subject of intense parliamentary scrutiny, but, for me, there is no greater individual liberty than the liberty of individuals not to be blown up on British streets or in British skies.
	"We face a terrorist threat that is at the severe end of severe, and we have proposed in this Counter-Terrorism Bill a way in which the police and prosecutors could apply to a judge to enable them to continue an investigation of a terrorist suspect in the most difficult, most complex and most challenging of circumstances.
	"This House has voted in favour of a reserve power, which could be used only when there is a grave and exceptional terrorist threat, and which would be accompanied by high judicial and parliamentary safeguards. But, despite the considered view of all leading counter-terrorism police professionals that these powers will be necessary and should be there, ready for use if needed; despite the opinion of the independent reviewer of terrorism legislation, the noble Lord, Lord Carlile; and despite the decision of right honourable and honourable Members of this House, the other place has tonight voted to remove from the Counter-Terrorism Bill the protections that the Government believe should be in place—not to amend; not to strengthen; simply to remove.
	"My priority remains the protection of the British people. I do not believe, as some honourable Members clearly do, that it is enough simply to cross our fingers and hope for the best. That is not good enough. When it comes to national security, there are certain risks that I am not prepared to take. I am not prepared to risk leaving the British people without the protections they need. So, instead of reintroducing the proposals for a reserve power in this House, my right honourable friend the Prime Minister and I have taken action to ensure that we have those protections in place, ready to be used if necessary. I have prepared a new Bill to enable the police and prosecutors to do their work, should the worst happen and a terrorist plot overtakes us and threatens our current investigatory capabilities.
	"Some may take the security of Britain lightly; I do not. The Counter-Terrorism (Temporary Provisions) Bill now stands ready to be introduced if and when the need arises. This would enable the Director of Public Prosecutions to apply to the courts to detain and question a terrorist suspect for up to a maximum of 42 days. Individuals could be detained only when this is authorised by a judge. The Bill's powers would automatically sunset after 60 days.
	"I will place a copy of the new Bill in the Library of the House, and I will continue to press forward with the other important and necessary measures in the current Bill—tougher sentencing for terrorists, stronger powers to seize terrorists' assets, stronger powers to allow the police to remove material that they think is terrorist-related during searches, the power to take DNA and fingerprints from people on control orders, and the ability to question terrorist suspects after charge. Those measures are right and they are necessary. I want to see them in force as soon as possible. I will continue to make the case for them as the Bill progresses.
	"We cannot defeat terrorism through legislation alone, but where legislation can help to protect the innocent from those who would inflict atrocity upon us, I am steadfast in my determination to do right by the British people. I deeply regret that some have been prepared to ignore the terrorist threat for fear of taking a tough but necessary decision. Let no one kid themselves that this issue can be made to go away. These are hard questions—tough questions—but however much opposition Members may wish to duck them, Britain still needs to be protected. Britain still needs to be prepared to deal with the worst. I hope that when it becomes necessary to introduce this Bill, as I believe it may, we can count on their support. I commend this Statement to the House".
	My Lords, that concludes the Statement.

Baroness Neville-Jones: My Lords, I thank the Minister for repeating the Statement. We are glad that the Government have dropped the proposal to extend pre-charge detention from the Counter-Terrorism Bill. It is the right decision, given the size and nature of the opposition to this unwise proposal. The Government are also wise to drop for the time being the greater part of the proposed provisions on inquests—although the objections from this side of the House are not just about the unsuitability of the Counter-Terrorism Bill as a vehicle for those provisions, they are also about substance. But that is the extent of my gratitude, because, let me be frank, the Government are now playing the blame game.
	The Government reason as follows. Parliament will not do the Government's bidding on 42 days on the Government's timetable, so they will now introduce a Bill "when needed"—which presumably means in the wake of an atrocity or an attempted atrocity. They will then attempt to force Parliament to do their bidding in time of crisis, through legislation that will not contain the parliamentary safeguards which we were previously told were so valuable, and they will try to blame the opponents to 42 days for being obliged to do that.
	Members of your Lordships' House were not born yesterday. This is intimidation. It is coupled with aspersions cast on the integrity of those whose judgments differ from that of the Government. They imply that we are lily-livered, not tough on terrorism and that we do not understand the threat. I reiterate that we on these Benches take the terrorist threat to this country every bit as seriously as do the Government. It is unwise of the Government to assert that the very fact of office renders their judgment superior. It most certainly does not—indeed, it can distort judgment.
	This way of behaving is also unworthy of a Government who claim to put priority on consensus on national security. No one is forcing the Government to substitute a future back-pocket Bill for the back-pocket powers that they were seeking yesterday, nor to exploit fear to get their way. Let us be clear: this is the Government's choice, and it is a bad choice. If they wish to have a new Bill, they should go through the normal process. This is important, because there are dangers in taking a new Bill through in haste during a crisis. It could very well be counterproductive. Imagine for a moment the following scenario. The extended period of detention is applied to a single suspect, who then goes to trial. Would not the defence counsel argue that the circumstances of the investigation undermined a fair trial since the jury would be tempted to assume the suspect's greater guilt? I reiterate our calls for an orderly legislative process.
	We know the Government's game, but what is the case? If this measure is so necessary, why did the Government utterly fail to convince your Lordships' House? Why were they not able to provide evidence to substantiate it? Why, on several recent occasions, has the Minister told us that we are safer than we were a year ago?
	The Government now talk of what will be "demonstrated need" for the legislation in situations of "exceptional terrorist threat". Need arises only when the powers available are inadequate to meet the situation. This has been the pretence all along in the Government's attempt to look tough on terrorism—the pretence that they do not have the power which they need and that the country is somehow bereft of protection. That is not the case. The Terrorism Act 2000 gives the Government the right to extend normal pre-charge detention, powers which the Government have not needed to use in full and which have not been shown to be inadequate. Let us also not forget that the threshold for bringing charges in terrorism cases is lower than in other criminal cases.
	If those powers are not enough, the Government have other powers and aids. The Civil Contingencies Act 2004 provides for the declaration of a state of emergency. It provides the Government with powers to detain suspects for questioning in the sorts of scenarios that they envisage—following, to use Mr McNulty's words, "three 9/11s". But the Government seem curiously reluctant to use this emergency power. We have made it clear that if the Act is not perfect, we are more than willing to co-operate with the Government to amend it. We have also made clear our support for the use of intercept evidence, which will lead to more guilty pleas and fewer abortive trials. So why have the Government been so leisurely on this issue since the Chilcot report? For starters, there is an amendment to the Counter-Terrorism Bill which the Government could accept.
	In short, there are several measures in the legal field that the Government could take, and that we would be willing to support, that would strengthen our ability to combat terrorism without short-circuiting the system in the way now proposed. Disagreeing with the Government on 42 days does not constitute being soft on terrorism. The Government should not store things in their back pocket. If they are now putting forward a wholly new proposal, when do they intend to submit it for pre-legislative scrutiny?

Lord McNally: My Lords, I regret the timing of this Statement; we in the usual channels did not agree with it. It could have taken place last night, as it did in the other place. More importantly, it might have been better if the Government had given themselves a cooling-off period to digest some of the very powerful arguments deployed against this measure in this House yesterday and the people who made them. The response has the stamp of petulance and its speed gives a hint of news management—burying the climbdown among the financial news dominating the headlines.
	My greatest concern is the threat implied in the Statement that the next time a bomb goes off or a terrorist outrage is committed, the legislation will be bounced through Parliament. That ignores the lesson that we have learnt over the past 40 years under various terrorist threats: emergency legislation often gets it wrong.
	As the noble Baroness implied, there is also an attempt to muzzle Parliament by the suggestion that anyone who questions any particular measure is soft on terrorism. There was far too much of that in what the Home Secretary had to say in another place last night. It is an insult to the experience and integrity of men and women in both Houses who take a different point of view. It also ignores the ratchet effect, whereby every terrorist outrage provokes more draconian responses until we end up losing the very civil liberties that we are supposed to be defending.
	Does the Minister agree that, as the noble Baroness said, we have an armoury of measures already on the statute book that could and should be deployed against terrorism? Is it not an insult to both Houses to make a Statement overriding the view of this House, particularly where the legislation lacked a majority from the Government's supporters in another place? As the noble Baroness said, in dealing with terrorism, the Executive should follow two important principles. It should follow an orderly process and it should look, as far as possible, for cross-party consensus. Pursuing 42 days in the way that the Government are doing ignores both of those principles.
	Both the Statement and the laying of the Bill last night raise important constitutional issues about the relevance and importance of the views of the Houses of Parliament to the Executive. The Government are wandering out onto very dangerous ice, and I urge them to think again.

Lord West of Spithead: My Lords, first, as I mentioned last night, there is absolutely no way that I think that anyone in this House is anything other than extremely loyal to the nation and the population of this nation. We may have different ways of going about things, but that is absolutely correct. I have to say, as a rather rough and ready sailor, that if I felt that someone did not feel that the safety of this nation and our people was one of their prime concerns, I would jolly well talk to them about it. That is not the way that I make assessments about the issue, because I am sure that all of us feel that desire; we all want to look after our people; but perhaps we have different ways of thinking about how that should be done. That is quite acceptable and it is a very good thing at times to go into that debate.
	Noble Lords made very clear last night their views on the clause and provisions in the current Counter-Terrorism Bill. I was saved from being in the Guinness book of records only by the fact that the number was a British top figure rather than a world top figure, but it was a fairly substantial vote. Notwithstanding that, as I said yesterday, I still firmly believe—and all those whom I call the real experts believe—that there will be a case where we will have a number of people in custody and more than 28 days will be required.
	Therefore, it is very important for us to think about how we handle that. I was asked yesterday on the Floor of the House, "Does this mean that you would let the fact that this has happened cause risks to this country? How will you handle it?". As I said yesterday, of course we would handle that in some way. We would face that and get through it. I also pointed out, however, that there would probably be rapid and therefore bad legislation, because, I am afraid, Parliament's record when something like this happens is that people stumble through legislation that is often far too draconian and dangerous.
	The noble Lord, Lord Carlile, said that he was pleased with the 42 days. He felt that this should be final and that there would be no opportunity to do this when bombs were suddenly going off and people were being killed. There is a tendency for that to happen. Putting the Bill on to the statute book means that there will be no opportunity for overreaction, so I see no difficulty with it sitting there. It will have to be argued through the House. The prime safeguards—the judicial ones—are in there, as they were in the CT Bill that we put through.
	The noble Baroness, Lady Neville-Jones, made specific points about coroners. All those issues are being slipped into the draft coroners Bill, which makes absolute sense. We need to approach all of them in the context of that Bill, where they can be looked at in the round. That is a far better way of dealing with them. She also said that we are forcing Parliament to go down a certain route. As I say, we are avoiding the possibility of something draconian and probably oppressive happening when one of these incidents occurs and we need more than 28 days, which I am sure will happen. I said yesterday that any Government in power would regret the fact that there was no back-pocket measure. Anyone in power will be pleased that there is something that they can push in at short notice that will not be too draconian.
	The noble Baroness also touched on consultation and how much we try to deal with people. I have been told by a number of people that we have had greater consultation than there has ever been on a Home Office Bill. This went on and on for months and a number of concessions were given. People have joked and accused me falsely of U-turns. A very different option was on the table last year, so we had a massive consultation. I am afraid that it did not succeed, but we still have this worry and fear—I am sure this will happen—that we will need more than 28 days at some stage.
	I have been accused of saying that we are safer. Some of the measures that we have put into place in the past 15 months have made us safer, but that does not mean that we are safe. The threat is huge. It dipped slightly and is now rising again within the context of "severe". There are large complex plots. We unravelled one, which caused damage to al-Qaeda, and the plots faded slightly. However, another great plot is building up again, which we are monitoring. We have done a great deal to protect ourselves and to look after our water supplies, our resilience, underground trains, our preparedness and communications. We have done all the things that we need to do, but the threat is building—the complex plots are building.
	The Civil Contingencies Act was mentioned. We well know from all the experts that that Act is not the appropriate way of covering this threat. Intercept is not a silver bullet. We are proceeding with the intercept work and implementing the Chilcot provisions with all haste on a cross-party basis, so I do not think that we have been faulted on that.
	All I will say in the final analysis is that having this measure in place is useful and will stop us passing something too draconian. What we need to do now, and what I would like to do, is to put this behind us and try to avoid being party political, because there are provisions in the Bill that are extremely important. I have tried in my entire time in this post to focus on the really important things for the nation and not to be political because, rather as in some other areas, that is the most important thing.

Lord Dear: My Lords, I should like to pick up on a comment made by the noble Lord, Lord McNally, and refer the Minister to two short comments in the Statement made yesterday in another place by the Home Secretary. She said:
	"Some may take the security of Britain lightly. I do not",
	and:
	"I deeply regret that some have been prepared to ignore the terrorist threat for fear of taking a tough but necessary decision".—[Official Report, Commons, 13/10/08; col. 621.]
	Bearing in mind that many noble Lords who spoke or voted yesterday have had a long and, at times, very dangerous association with the terrorist threat, can the Minister reassure the House, by disassociating himself from those statements, and, if not, why not?

Lord West of Spithead: My Lords, I am absolutely certain that my right honourable friend in the other place did not mean those statements in the way in which they are being taken.

Lord Foulkes of Cumnock: My Lords, does my noble friend agree that one of the incidental advantages of abandoning this part of the Bill is that we will be spared any more lectures from the noble Baroness, Lady Neville-Jones?

Noble Lords: Order!

Lord Foulkes of Cumnock: My Lords, that is perfectly in order. Does my noble friend agree that what we saw last night was a large number of Tory backwoodsmen, who very seldom attend this House, turn out in a deliberate attack to embarrass the Government? If they had sat through the debate, particularly the speeches made by the noble Lords, Lord Carlile and Lord Tebbit, and had listened to the arguments, they would have voted differently. As the noble Lord, Lord Tebbit, said, many Conservatives opposite will rue the day.

Lord West of Spithead: My Lords, I share my noble friend's view that some of us may rue the day that we do not have a back-pocket measure. Late last night, I sat at home looking at Hansard. I looked at the balance of how the argument went and I thought that it was good and fairly well balanced. In fact, I thought that we had done rather better, so I was horrified at the total score at the end. I would not attack the noble Baroness, Lady Neville-Jones, on the same basis. I was impressed that she said that it was her Government. At times in the media I have had the feeling that she is the Minister for Security, so I was not surprised by that statement.

Lord Campbell of Alloway: My Lords, do the Government consider following the advice of the noble Baroness, Lady Manningham-Buller, and do they seek to establish cross-party consensus beyond a political divide? To that end, might they even consider setting up a Select Committee, inviting Members of this House who have practical experience in the gathering of terrorist intelligence to serve?

Lord West of Spithead: My Lords, the noble Lord makes an interesting point. The thrust of his feeling that counterterrorism should be removed as far as possible from political aspects is right. I do not believe that setting up a Select Committee would be right. The mechanisms in place already allow the sort of debate required.

Lord King of Bridgwater: My Lords, is the Minister aware that the remarks made by the Home Secretary are singularly unhelpful if she is trying to establish a bipartisan approach to this issue? Perhaps I may reinforce what the noble Lord, Lord Dear, said. Some of us who obviously have had involvement in terrorism take enormous offence when remarks such as those that the Home Secretary made last night in the House are made. I hope that he will emphasise that very strongly. Would he answer the question asked by my noble friend Lady Neville-Jones? Will there be pre-legislative scrutiny of this measure?

Lord West of Spithead: My Lords, I take the point made by the noble Lord, Lord King. I understand that. I hope that I have never in anything I have said given an indication that I think other than that people are acting with the interests of this nation and our country at heart. I am sure that my right honourable friend will be aware of what has gone on in terms of debate in this House. On pre-legislative scrutiny, the draft Bill is in the Library. When an incident happens, it will have to go through the normal process in both Houses.

Lord Soley: My Lords, I commend my noble friend on the way he is handling this, not least because I was one of the people who for a number of years opposed very strongly the old Prevention of Terrorism Act, which was far harsher than the Bill as it enabled politicians to exclude a person from one part of the UK to another without judicial oversight as well as many other things that are not allowed under the Bill. At the time both the Conservative and the Liberal parties accused me of being soft on terrorism, said that the IRA would be delighted, and so on. The way to deal with this may be simply to say that this is a rather belated apology from the Front Benches of the Conservative and Liberal parties to me for what was said in the 1980s.

Lord West of Spithead: My Lords, my noble friend makes a good point and I would love to take it in that way.

Viscount Bledisloe: My Lords, does the noble Lord agree that while some people may have turned up to vote last night who do not come every day, the most noticeable thing yesterday was the very large number of those who claim to be government supporters who did not come and vote for their Government?

Lord West of Spithead: My Lords, I am not sure that I totally agree with that. I was rather pleased by the number who did vote with the Government, but there were one or two notable exceptions. Some of those did surprise me; in one case, for example, the person had been a strong supporter of 90 days. That was somewhat surprising.

Baroness Falkner of Margravine: My Lords, the Statement is full of implications concerning the lack of patriotism among Members of this House. I regret that the noble Lord, Lord West of Spithead, whose integrity we are absolutely sure of, has not used this opportunity to dissociate himself from the Home Secretary's comments, as the noble Lord, Lord Dear, asked him to do.
	My question concerns the detail of the Bill, and I do not believe that the noble Lord has responded to any of the questions put to him in this regard. Given that it is still within the ambit of pre-charge detention, what does the Minister expect to happen if there is, say, another alleged hijack attempt such as that carried out in 2006 and those of us from the Muslim community are contacted, as we always are, with information from the Home Office confirming that arrests are taking place? Does he expect us to come into this Chamber, to be told nothing, and then blindfold and with hands tied, have to vote for this Bill? Will he consider the implications of this measure for the Muslim community at a time of crisis when the possibility of civil disorder will arise—particularly in the light of comments about patriotism that have been made—resulting in even greater friction in the community and certainly to the drying-up of any intelligence or information that might lead to a successful trial?

Lord West of Spithead: My Lords, I hope that the noble Baroness will accept, as I have said a number of times, that I would not impugn at all the motives of any noble Lord in this Chamber. In my 15 months here I have not met or talked to anyone who is anything other than caring of our nation and our people. That is absolutely the way I feel about it. I hope that the noble Baroness does not think I feel anything else, because I do not.
	We have to be careful of incidents—they are hypothetical and we have to think them through. What will happen is that when the DPP and the police feel that we desperately need more than 28 days, the Bill will be brought before the other place and this House and will be debated. I am sure that everyone will consider it fully, even though it will be pushed through. I do not believe that it will be as draconian as it might be, and certainly not as dangerous as if, say, someone were either to let off or be in the process of trying to detonate a dirty bomb while some people were still exposed to it. In that sense at least, the Bill is constrained. That is how I see its introduction.

Lord Lloyd of Berwick: My Lords, I see that the Government intend to press ahead with their proposals on post-charge questioning. Is the noble Lord aware that if post-charge questioning were made subject to judicial authorisation, those proposals would have a far easier passage through this House?

Lord West of Spithead: My Lords, I know that the noble and learned Lord, Lord Lloyd, will be raising various issues when we debate the Counter-Terrorism Bill later in the week. I would rather not comment at the moment, but wait for those debates.

Lord Baker of Dorking: My Lords, a few moments ago the Minister rather disarmingly said that he was just an old sea dog. Can he say from his experience that when a boat has been holed below the waterline, is taking on water and is limping into port, the crew and the captain will take comfort from the fact that the next thing they are going to be asked to support is a boat that has not been built and can be launched only in a typhoon?

Lord West of Spithead: My Lords, that leaves me reeling at sea. I certainly think that we should start pumping, but I shall not say any more than that.

Lord Ryder of Wensum: My Lords, if the Minister feels that he has done well when 50 per cent of his noble friends have not supported him in a Division, I would hate to follow him into a real battle. Has he considered that the draft emergency Bill might have to be introduced during a summer recess and that Parliament would have to be recalled? In those circumstances, it would be imperative for it to receive pre-legislative scrutiny. Otherwise the prospect of passing the Bill in a summer recess after Parliament had been recalled in an emergency would be absurd.

Lord West of Spithead: My Lords, the noble Lord is right that Parliament would be recalled. He needs to beware of saying that no one would follow me into battle because they have done on a couple of occasions and I had no difficulty with that. On pre-trial scrutiny, clearly I have got the wrong end of the stick and I should like to come back on it.

Lord Elystan-Morgan: My Lords, there seems to be a total genuineness among people of all parties, both in this House and the other place. It seems to me—I hope I am not looking at it too naively—that everyone is essentially asking the same question: how do you cater for an exceptional case which does not fit within the rubric of the 28-day detention rule? I think that is a fair way of putting it. The fallacy is that the answer must be to make it 42 days. The exceptional case may be as little likely to fit into 42 days as it is into 28 days. In other words, those of us who are arguing for a baulk on extended detention time are looking down the wrong path. The point was mentioned by the Minister last night when he said that there could be lengthy periods of detention if we develop that side-by-side with sophisticated communication advances. The only alternative—this could well be the basis of a cross-party agreement—is to look down a totally different path, the judicial path. Once a case nears the 28-day limit, it should be left to the discretion of a senior judge, or a panel of senior judges, to allow any period of time, in appropriate tranches, even if that came to 50 days or 100 days. The difference would be that the citizen would not be in the hands of the calendar with all the checks and balances that we have now; but would be at the mercy of the courts.

Lord West of Spithead: My Lords, the noble Lord raises an interesting point. I can assure him that I will be looking very closely at any other ways of ensuring that, if we get to a position of people at 28 days, we are able to gather the evidence necessary to make a charge or to say they have to be released. There may or may not be other ways of doing this but, at the moment, we believe there will be a case that goes beyond 28 days and that the police and DPP will ask us to do it. This effectively emergency measure has been provided and will be put in place when that occurs. If we find before then some other way of doing this, I will jump at it. This is one of things I was trying to look at over the past eight months but, whether it was threshold tests, CCA or putting money in to do these things quicker, there was not a way I could see of doing it. That is why we have arrived at where we have got to.

Lord Clinton-Davis: My Lords, will my noble friend listen carefully to what the noble Lord, Lord Elystan-Morgan, has said? In his intervention there were the seeds of a possibility and I beg my noble friend not to dismiss it lightly. It is incumbent on this House to act speedily and effectively to the terrorist threat. I do not think any of us has the right answer at the moment. We have the possibility of acting effectively and speedily, but that requires the consent of both sides. Put aside what happened last night. I do not think that the Opposition have come to the right conclusion and I am not sure that the Government have. Think again.

Lord West of Spithead: My Lords, I thank my noble friend for his interjection. I certainly will not dismiss lightly the point made by the noble Lord, Lord Elystan-Morgan; as I hope I made clear before, I will think about it. As regards putting things behind us, I could not agree more. I should like to put this firmly aside, get the important things that still remain in the Counter-Terrorism Bill on the statute book and press on with trying to make the country safer.

Lord Thomas of Gresford: My Lords, the noble Lord has effectively dissociated himself from the insults that were thrown at this House by the Home Secretary yesterday and about those who oppose the Government's plans. He heard the debate. Will he convey to the Home Secretary and those advising her that the main objection to the proposal that she put forward was that people would be kept for up to 28 days when there was not even a reasonable suspicion that they had committed an offence? If after 28 days those who were investigating did not have in their mind a reasonable suspicion that the person detained had committed a terrorist offence, then it would be just internment by another name. To extend the time limit to 42 days is ridiculous as well.
	The last I heard, there were 14 computer analysts employed by the Home Office. Let us assume that the figure has doubled to 28. How long would it take them to decrypt and look at the 400 computers that were involved in Operation Overt, to which I referred yesterday? Could they do it between 28 days and 42 days? Obviously they could not. The whole scheme has been nonsense. It is ridiculous to have another Bill of this sort coming forward in which these mistakes and misunderstandings are maintained.

Lord West of Spithead: My Lords, I am afraid that I have to take the noble Lord to task. It is nonsense to suggest that we go into a pub, pick up eight people and say, "Let's get these chaps and keep them in detention while we try and find some evidence". The Security Service, GCHQ, SIS and SO15 have been involved. These people have been monitored, tracked, listened to and spotted; we have seen who they are talking to. If, after a great debate between the Security Service, SO15, the police and the Home Office, we feel that they are a real risk to this country, we finally say, "Let's act now". The police might not want to because they do not have the real evidence even though they know that those people are about to do something. We have to say—and I think this is absolutely right—"No, act now, because we do not want large numbers of our population to die".

Lord Thomas of Gresford: My Lords—

Lord West of Spithead: I will not give way, my Lords. These are not people dragged in off the street—it is a very different situation. This makes me slightly annoyed because we do not do that. We put a huge effort into this; we do not scoop up little innocent chaps at a football match and throw them into detention. That is not what they are.

Baroness Manningham-Buller: My Lords—

Noble Lords: Cross Bench.

Lord West of Spithead: My Lords, I must make this point to do with computers. I have looked at the number of people involved, and there are choke points which make it impossible—it would not matter if we had 10,000 analysts. There are also the problems of going into other jurisdictions. If you go to Pakistan, they are not always 100 per cent helpful and there are countries which will not help. These things all take time, so it as not as straightforward as has been said.

Baroness Manningham-Buller: My Lords, I support the Minister in his analysis. It may help the House, in thinking about this issue, to differentiate between intelligence from whatever source, whether it comes from overseas or is from a human source regarding what one person said to another. It is not admissible in evidence because it is hearsay. It is being developed to try to make it evidence on which to charge people. During the 28 days, intelligence that has been collected has been seen by the CPS and is shared with the police who will consider what of that intelligence amounts to evidence on which people can be charged. This is a proper process.
	There has been too much confusion in Committee between intelligence, which is in most cases imprecise, incomplete and insufficient when it comes to charging people, and evidence which, quite rightly, meets a high standard before it can be used. That transition is what happens in a period of reasonable suspicion.

Lord West of Spithead: My Lords, I thank the noble Baroness, Lady Manningham-Buller, for that interjection. She put far more eloquently than me, because I became slightly stroppy, exactly what I was trying to say. It is not as straightforward as that.
	I slightly misled the House earlier. The coroner provisions will be in the fourth Session Bill, which will deal with coroner issues. It is not called the Coroners Bill.

Planning Bill

Baroness Andrews: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 5 [National policy statements]:

Lord Dixon-Smith: moved Amendment No. 41:
	Clause 5, page 3, line 9, at end insert—
	"( ) The policy set out in a national policy statement may not—
	(a) identify any location or site as suitable (or potentially suitable) or unsuitable for a specified description of development;(b) identify any individual statutory undertaker or undertakers as appropriate persons to carry out a specified description of development."

Lord Dixon-Smith: This is so small a group of amendments that it is barely even an hors d'oeuvre for this session of the Committee. However, the two amendments in it raise an important point. They would remove the capacity, spelled out in the Bill, for national policy statements to be site specific. They are probing amendments, because there may be cases where it is appropriate to designate sites—I would be the first to acknowledge that. However, we need to do that with our eyes open.
	The first and obvious question is how far, if we designate the sites, we are in effect pre-empting the whole planning process. If we are going to need seven nuclear power stations or reactors and we designate seven sites, is that designation not tantamount to granting permission? Perhaps that is what is intended. Of course, if the Minister can tell me that it is intended that 10 sites will be designated so that the commission has a choice, I will accept that the process is open and satisfactory, but there may be other people who would have concerns should that happen. Even worse would be the case where we knew that there was a demand for 10 sites but only seven were designated, which would leave people dissatisfied.
	That is one aspect of the problem. We need also to be aware that any development of a power station is a long-term matter, not just in the process of development but in relation to the life of the power station. Circumstances may well change. I have tabled another amendment, with which the Minister's noble friend will probably deal later, addressing heat recovery from power stations, but I will introduce the issue now because it is significant.
	The electricity generating industry consumes more than 1,100 terawatts of energy to supply customers with somewhat more than 400 terawatts. The figures may have moved up or down since I last looked, but there is no variation in those proportions. Much of that difference is lost in the form of waste heat. We expect society generally to become more energy efficient. We see combined heat and power establishments able to work at an energy efficiency in excess of 80 per cent. If you buy a modern condensing boiler, it, too, will have a thermal efficiency of more than 80 per cent. The fact is that our generating industry is working at somewhere around the 40 per cent mark, if it can get that far. Can we afford to run industry at that level of energy inefficiency?
	I know that the generators will be shocked when I say that, because the possibilities of using that waste heat have considerable expense attached to them. One obvious way in which to use the heat would be to supply it to communities, but the sort of sites that might be designated for nuclear power stations, in particular, might not be suitable for that because they are all inevitably in rather remote places. Another relevant planning implication is that we may be able to find an industrial use for that heat. However, that has further planning implications outside and outwith the site designation, because it may mean the creation of an industrial estate of some considerable size, given the volumes of energy that we are talking about, in an area where that would not perhaps be judged suitable because of the nature of the countryside and the remoteness of the area.
	There are wide implications behind this decision on site specificity—if I can get my tongue around that word. We need to go into this with our eyes wide open, so it is worth discussing. I beg to move.

Lord Boyd of Duncansby: I oppose these amendments. Indeed, my concern is that the national policy statements might not be specific enough in certain respects. As I understand it, the Government have said that both nuclear and aviation will be site specific. I think that that is right. If the national policy statement designates an area for expansion of an airport, for example, or for a new airport, there are a lot of other components to it, particularly transport into the hub that is the new or expanded airport, with railway, road and other services. If the national policy statement is to be the bedrock of our policy and national infrastructure, a certain degree of specificity—I have the same problem as the noble Lord, Lord Dixon-Smith, in saying that word—and site specification is necessary.
	The measure is important for two other reasons. It gives a degree of certainty not only to the nation but to communities affected by the national policy statement that identifies that location. In addition, it gives greater accountability to Parliament, because whatever system is used for parliamentary oversight on whether the national policy statement needs the formal approval of Parliament, nevertheless the policy statement will be debated. The identification of sites for infrastructure can be debated in Parliament in a way in which it has never been before, giving a much greater degree of specification, accountability and planning.
	My worry is that national policy statements may not be specific enough. I hope that those statements that for various reasons are not site specific are couched in language that is as clear as possible, so as to remove any possible ambiguity. We are all familiar with policy statements that give a nod and a wink in different directions. It is vital that the Infrastructure Planning Commission has as clear guidance as possible on what the Government and Parliament wish for their future infrastructure needs.

Lord Jenkin of Roding: We touched on this subject on the first day of Committee in the context of the role of the Infrastructure Planning Commission. On that occasion, I said why I thought—and I agree very much with the views of the noble and learned Lord, Lord Boyd—that in some cases site-specific indications would inevitably be in the national policy statement. I will not repeat what I said on that occasion, which I hope is of some relief to the Minister, who is asking us to make a little more progress. I have some sympathy with that, as I do not want to sit here all night. However, my noble friend raised some perfectly valid points and I look forward to hearing the Minister's reply.

Lord Turnbull: I suspect that, like other Members of the Committee, I am finding it difficult to fathom the game plan of the opposition Front Bench in general on the Bill and on these clauses in particular. Two weeks ago, the leader of the Conservative Party announced a commitment to a big expansion of the high-speed rail network in this country. Surely he must be thinking that, should he ever come to power, it would be extremely valuable to have this Bill on the statute book, as he will not get those plans through with a tinkered-with version of the status quo. Likewise, I do not understand the objection to these clauses. The amendments were introduced by the noble Lord, Lord Dixon-Smith, with his customary moderation and courtesy, but the truth is that, if passed, they would be very damaging to the Bill.
	First and foremost, the purpose of this part of the Bill is to reduce uncertainty and unnecessary delay in the planning system. One of the key causes of such delay arises from location—I use "location" rather than "site" because I do not think that "site" appears anywhere in this legislation, although it appears in the amendment. A developer can spend years and millions of pounds pursuing a particular proposal only to find at a very late stage that the location is deemed unsuitable.
	Even worse, a developer can find himself caught in what I call the Nirex fork. In developing its so-called Rock Characterisation Facility, Nirex initially canvassed a range of sites throughout the country, including one in the constituency of the Secretary of State for Energy at the time, which was probably a mistake. Quite naturally, there was uproar throughout the land. As only one of the sites would ever be chosen, much of the uproar was entirely unnecessary. Nirex then tried a different tack, which was to choose a suitable site and to make the case for it. It was rebuffed on the grounds that it had failed to establish whether the site was indeed the best location.
	We also need to avoid the mistake made by British Rail in developing the route for the Channel Tunnel Rail Link. It put forward a whole series of options coursing across Kent, none of which was used in the end. The process caused major issues of blight and distress and claims for compensation.
	The noble and learned Lord, Lord Boyd, pointed out that there was a specific request in the other place that in some cases aviation and nuclear power NPSs should be location specific. But there is a misconception that a location-specific NPS would fix the outcome of the examination. That is not the case, because it would identify sites as unsuitable or potentially suitable for development, but would not go so far as to be site or project specific. These proposals need to be taken away as part of a wider rethink of what the Opposition want to get out of the Bill.

Baroness Hamwee: I, too, join the debate on location and site specificity at the start of the Bill. I take the point about the distinction between a site and a location. Nevertheless, appealing to tidy minds as it is to provide the possibility in every NPS of specific locations, that raises the question of the powers of the Infrastructure Planning Commission. That is where I have problems.
	The noble and learned Lord, Lord Boyd, mentioned transport in connection with development of an airport. I declare an interest now, as we will come on to airports in more detail later: I live not far from Heathrow, under one of its flight paths, and am affected by ground traffic to the airport, both rail and road. The number of times that the level crossing near my home is down because of the amount of rail transport is extremely frustrating. These things have a knock-on effect a long way down the line.
	I still find it almost impossible to understand how the Infrastructure Planning Commission, faced with a national policy statement that says that there will be expansion of an airport—not necessarily Heathrow—and properly going into the implications at ground level, will be able to say no to that application in the real world. Perhaps, however, the problems come at least as much in the powers of the IPC as they do in describing the scope of the NPS.

Baroness Andrews: I am grateful to the noble Lord, Lord Dixon-Smith, for giving us an opportunity to have this debate. It is an extremely important issue. I am also grateful to the noble Lord, Lord Jenkin, for flagging up our Front Bench's concerns that we make progress. He did so beautifully; far better than I could have done by wagging my finger.
	Discussing the two amendments in this group is important to clarify the nature of the debate on the degree of specificity needed within the NPS. Amendment No. 41 of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, and their Amendment No. 45 with the noble Lord, Lord Jenkin, would alter Clause 5 to remove the discretion of the Secretary of State to identify a particular location or site as suitable, potentially suitable, or unsuitable. They would also remove the discretion to identify an individual statutory undertaker as appropriate to carry out a specified description of development.
	I understand that these are probing amendments and hope that I can address all the questions that have been raised. I am conscious that we are bedevilled by terminology and debating a rather elusive concept. We were helped greatly by the panel discussion we had last week, with different promoters and the CBI, about the interpretation of locations in terms of different demands and possibilities for different types of infrastructure. The noble Lord, Lord Turnbull, and the noble Baroness, Lady Hamwee, have already drawn attention to the difference between "location specific" and "site specific".
	NPSs are locationally specific and will indicate, as appropriate to the particular infrastructure they are concerned with, places which are suitable or potentially suitable locations for development. However, they will not identify specific sites. It will be for the developer to bring forward the site application, and for the IPC to determine whether that site meets the criteria. It will be left to the IPC to consider the detail of specific sites, layout, access and, of course, to weigh up the adverse impacts of the proposed project. I shall come to the important question of the noble Baroness, Lady Hamwee, on this a little later.
	The case for some NPSs to address issues of suitable locations is simply logical. Although I take the point made by my noble and learned friend Lord Boyd, when planning for infrastructure it makes no sense to leave a policy vacuum and to leave the policy in the abstract. Certainly, although NPSs will differ in the detail they can offer about where certain infrastructure may or can go, they will be able to identify places which are unsuitable. I take the point made by the noble Lord, Lord Turnbull, about the way in which we have approached this issue in the past and the chaos and blight that have been caused by some of the ways in which it has been approached.
	In their amendments noble Lords argue that it is inappropriate for NPSs to identify a location because this would amount to implied planning permission. It is not planning permission or implied planning permission because planning permission permits development of a certain description to go ahead in a particular location. Even outline planning permission establishes a principle that development can take place in a particular location. To specify a potential location does not establish any such principle, it simply means that a location may be suitable for a certain type of development.
	In previous debates we have rehearsed at length the fact that NPSs will provide the primary reference point for the IPC, the strategic framework which draws together and integrates policy. By determining clear and predictable criteria they will also critically provide a clear and predictable framework for investment decisions. For all the reasons that the noble Lord, Lord Turnbull, pointed out, this is what we are all aiming to address. Some NPSs will be more locationally specific than others. Ministers have already given assurances in the other place that NPSs for nuclear and air transport—the two most contentious forms of development covered by the Bill—will be locationally specific. It is at this point of the deliberation that the national debate and the debate on area effects is bound to be most intense. While these national policy statements will exist to address the national need, they will also make it clear that they will be driven by logic dictated by geography, geology and demography, which will mean that certain places are more suitable for some developments than others. Making the reasons for that decision clear is very important as it will mean that the political judgment within which the IPC will in turn take the final decisions over the site has been set by Ministers and is subject to scrutiny by Parliament and to public consultation. However, it will be difficult and may not be appropriate to specify locations in all NPSs. The possible range of locations can be very wide for wind farms or gas-fired power stations. The NPS would not only not want to specify location, it would be impossible to cover all the options. This is where the broad areas might be indicated, but local considerations have to come fully into play.
	There are other considerations as well. For other types of infrastructure there may be real issues of market flexibility and the ability of the market to respond to demand. Ports would fit into this band. Geography would be bound to narrow choices, but at the same time there needs to be scope and flexibility for market choice as well. If we specified locations which would imply a choice, we would intervene significantly in the marketplace. That could constrain competition, threaten our competitiveness and undermine the security of our energy supply.
	As the noble Lord, Lord Turnbull, said, the crucial thing is clarity. In these instances where an NPS cannot be locationally specific we look to provide in the NPS as much guidance as possible to give as much certainty as is possible within all the constraints. Where an NPS does not identify locations as suitable, it will be up to it to provide criteria about suitable locations, which could be based on key physical, environmental and economic conditions, and the impact that might follow from those criteria, and to assess what would be suitable for development of specific types of projects. The NPS will also address the weight given to criteria.
	Before identifying particular locations as potentially suitable, however, the Secretary of State must go through a careful process of considering the relevant evidence, involving appraisal of sustainability. He or she must also consult on the proposal, crucially with people in the local area, so that people are informed about the policy, understand the local implications, and have a chance to have their views taken account of before an NPS is designated. Clause 7(5) therefore provides that, where locations are identified, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal, and Clause 8 requires him to consult local authorities in the affected areas about that publicity.
	The noble Baroness, Lady Hamwee, asked whether, when a location-specific NPS has undergone the process, the IPC has any real scope to reject an application. The clear answer is yes, it does. The IPC must balance the national tests with local tests and see how the criteria weigh up. Several tests must be applied and, if the application fails any of these tests, the IPC can refuse consent or, importantly, ensure that mitigating measures are put in place in the final order.
	First, the application must be consistent with the NPS. Secondly, the application must not contravene any obligation under international or UK law. For example, applications must be consistent with European directives on air quality and noise, the habitats directive, and so on. Thirdly, the application must be in accordance with any matters prescribed in secondary legislation under Clause 101(2)(c). For example, particular types of development might give rise to special considerations by virtue of existing legislation, such as alterations to a listed building.
	Finally, the IPC must be satisfied that the benefits of the proposal outweigh the impacts. In determining that, the IPC would have specific regard to the local impacts report from affected local authorities that we made provision for in the other place. It is a question of the IPC listening very carefully and weighing technical, social, environmental and economic evidence about the national interest being served in principle by a piece of infrastructure and the local impact. The IPC must mediate between those two sets of considerations. There will be benefits to most local infrastructure projects, and there will be aspects that need mitigation and which will be problematic. It is the job of the IPC to ensure that that debate is properly held at that point. If the application fails any of those tests, the Bill is clear that the application can be turned down.
	On the second amendment, both the amendments would prevent the identification of a particular statutory undertaker as appropriate to carry out a development. We debated this matter on Monday, and I do not wish to detain the Committee unduly with this issue. I simply reiterate that we wish to retain the ability to identify certain developers, such as the Highways Agency or Network Rail, where that would be appropriate, and avoid the unwanted consequence that responsibility for any blight caused by the NPS would fall on the Secretary of State, rather than on the statutory undertaker who would provide the infrastructure and would therefore be expected to purchase the land in due course.
	It is an important area of the Bill. I hope that noble Lords are reassured by my response. This was a useful debate, and I hope that the noble Lord will feel able to withdraw his amendment.

Lord Dixon-Smith: I shall just comment on one or two points. The noble and learned Lord, Lord Boyd of Duncansby, in raising the question of aviation, said that the solution has to be related to existing airports. I should not have to remind him that there is at least one person not too far from here who thinks that the solution to the aviation question, particularly so far as the south-east of England is concerned, lies in an area where there is no airport sited at present. There are other reasons why that may become a very real possibility. In this instance, site-specificity may not be as appropriate as the case that he mentioned.
	I acknowledge the enormous experience and knowledge of government of the noble Lord, Lord Turnbull, but his choice of Nirex as an issue was not a particularly good one. I was involved in a peripheral way through local government, but I had no direct connection with Nirex. The noble Lord is right—it raised a lot of hairs and caused a lot of reaction. When finally a specific site was found, Nirex still managed to get its plan rejected. Here we are, 30 years later, still getting precisely nowhere. Therefore, an argument can be made both ways.
	I accept that the purpose of the Bill is to reduce delay; heaven knows, I have lived with the planning system for most of my life through my experience in public life. I would be the first to acknowledge the need to reduce delay, but we need to do what we do with our eyes wide open. I am grateful to the noble Baroness for her conscientiousness and for the fullness of her reply, with which I am pleased. It was sufficient justification for this discussion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Jenkin of Roding: moved Amendment No. 42:
	Clause 5, page 3, line 9, at end insert—
	"( ) A statement issued before 1st January 2006 may not be designated as a national policy statement for the purposes of this Act."

Lord Jenkin of Roding: I can deal with this amendment briefly. It concerns an anxiety expressed by local government, and it is right that the matter should be aired in the Committee. Our suggestion that the Government should not designate as a national policy statement a statement made before the date specified in the amendment would avoid any temptation for them to avoid all the processes required when putting forward a new national policy statement. We have suggested that statements made before that date two years ago must be presented as new national policy statements and, therefore, they would be subject to a full review, to include sustainability appraisal and full consultation, before they can be designated.
	Perhaps the noble Baroness can allay my anxieties, but the Bill seems to allow the Secretary of State to designate existing policy statements, however old they may be, as national policy statements without the need for further appraisal. That cannot be right. I have seen statements on planning applications which were in an entirely different form from what we are now led to believe will be the form of a national policy statement under the Bill. I hope that the noble Baroness can express her views.
	Other amendments relating to Clause 12 are grouped with this one. I will leave it to the noble Lords who have tabled then to speak to them and shall not attempt to introduce other arguments at this stage. I am merely concerned about the use or, I suspect, the misuse of very old, existing policy statements. I beg to move.

Earl Cathcart: At Second Reading the Minister said that,
	"national policy statements will be planning documents of the highest order"
	and that,
	"Individuals and local authorities will be able to have their say on how the assumptions and difficult choices made at national level could have implications in their local areas".
	She added:
	"We will ensure that where the draft NPS is locationally specific, local peoples' views are taken fully into account in the final NPS".
	She also said that,
	"we want there to be a proper national debate about the need for key infrastructure ... to boost opportunities for public participation".—[Official Report, 15/7/08; cols. 1161-63.]
	The Minister went on to explain the clear procedures that must be followed before policy becomes a national policy statement. That is all excellent stuff, provided that it is applied to all national policy statements.
	It seems quite extraordinary that under Clause 12 a Secretary of State can just dust down an old policy, regardless of how old it is or whether any or all of the correct procedures and legislation have been complied with. Doing this may well undermine the very credibility of that national policy statement.
	We have tabled Amendment No. 95, which would remove Clause 12(3), because we do not believe it is good enough that the Secretary of State should be allowed merely to take account of pre-commencement consultation, regardless of when it was carried out and how thorough it was. There needs to be up-to-date and relevant consultation.
	As the Bill stands, there seem to be no checks or balances to ensure that correct procedures have been carried out and that legal requirements have been complied with for all, not just some, national policy statements. That is why various amendments are tabled to Clause 9 calling for affirmative resolution, the approval of both Houses and a Joint Committee of both Houses of Parliament once consultation and publicity requirements detailed in Clause 7 have been complied with. Those amendments would ensure that the correct procedures had taken place for all, and not just some, national policy statements. Once approved by both Houses, an NPS would have the force of law and therefore be very difficult to contest in the courts, but we will deal with those amendments later in Committee. In the mean time, the Minister may be able to clarify something when she responds. If the Secretary of State designates an old policy as a national policy statement, will it still have to go through the parliamentary requirements as laid down by Clause 9?
	At Second Reading, the noble Lord, Lord Greaves, said that,
	"if people are dissatisfied with the system and it is in disrepute, they will go to judicial review and the courts and the system will be clogged up".—[Official Report, 15/7/08; col. 1229.]
	I agree with him. If the Government persist with the imperfections in Clause 12, they will create a rod for their own back and, instead of speeding up the planning process, the flawed NPS will be subject to endless legal challenges: judicial review, the UK courts, the European courts because directives have not been complied with, and the European Court of Human Rights because there was not, in the Minister's words, a national debate and people's views were not taken into account.
	We understand that the Government intend to adopt the 2003 air transport White Paper as the national policy statement in respect of aviation policy. I should probably declare an interest: I have flown this year; I flew last year; and I shall probably want to fly again next year. I have no particular axe to grind and I understand the arguments for expansion, but that policy is now five years old. If it were adopted as a national policy statement, there would be endless legal challenges, and I shall briefly give a few examples.
	First, if such a policy were being considered today, the proposals would first need to be subjected to a strategic environmental assessment to comply with EU directives which became law in this country by regulations in 2004—hence our Amendment No. 93. The aviation national policy statement would need to comply with those directives or risk legal challenge.
	Secondly, the Freedom of Information Act came into force in January 2005 but it was not until July this year that the Information Commissioner reported. The report was peppered with criticisms of the Department for Transport's constant obstruction and prevarication in dealing with requests for information. Would that lead to legal proceedings? Perhaps it would.
	Thirdly, the Aarhus convention was ratified in 2005. The full title is the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. It lists airport development as one of the activities on which the public must have proper access to information, defined participation rights in the decision-making process and proper recourse in law. In so far as the UK Government had not ratified the Aarhus convention at the time of the air transport White Paper but have now done so, they have significantly greater obligations in these respects than they did in 2003. Legal proceedings? Maybe.
	Fourthly, on the pre-aviation transport policy consultations, the Secretary of State, Hazel Blears, at Second Reading in the other place, said:
	"National policy statements will be subject to debate across the country".—[Official Report, Commons, 10/12/07; col. 29.]
	She also said that,
	"there will be a transparent debate in public".—[Official Report, Commons, 10/12/07; col. 36.]
	The consultation on aviation in 2002 was not national but confined to areas around the airports. Even so, nearly 500,000 responses were received, and over 90 per cent were opposed to the Department for Transport's proposals. It is questionable whether the consultation complied with the Minister's statement that the Government would ensure that, when the draft national policy statement was locally specific, local people's views would be taken into account in the final statement.
	Fifthly, on climate change, I know that the Minister has agreed to look at that issue again, which is welcome, but if the 2003 aviation and transport White Paper is adopted as a national policy statement, air transport policy as it stands might ride roughshod over the requirement to comply with climate change provisions. As aviation is the fastest growing contributor to carbon emissions it can be argued that the current aviation policy is at odds with the climate change provisions.
	Sixthly, the current aviation policy impacts directly on people's human and property rights. If people feel that their basic human rights have been trampled on, there may be proceedings in the European Court of Human Rights. There is doubt that the process set out in Clause 12 will be compliant with the ECHR.
	Seventhly, the European habitats directive protects some of our most important habitats. If people feel that that is not being considered there may be legal challenges. Currently no recognition is given to the fact that this process must comply with that directive.
	Eighthly, earlier in Committee the noble Lord, Lord Howarth, tabled an amendment on the need for national policy statements to appraise our built heritage, scheduled ancient monuments and important landscapes. In replying to that excellent debate, the Minister said that PPSs 15 and 16 would critically feed into the NPS and that under Clause 58 local authorities,
	"will be invited to submit a local impact report once an application has been accepted".—[Official Report, 8/10/08; col. 267.]
	That will not happen if the 2003 aviation policy is adopted as a national policy statement because the applications have already been made. We heard in that debate how at Stansted more than a dozen listed buildings will be demolished and that at Heathrow, according to John McDonnell, a Labour Member in another place, 10,000 of his constituents face losing their homes, including listed buildings and three primary schools. That is another highly emotive area of conflict and dissatisfaction.
	Those are just some of the problems and pitfalls that I foresee if the Minister persists in using old policies as national policy statements. I have used aviation as my template but the argument could apply equally to other national policy statements. For national policy statements to work they need to be robust, have genuinely ticked all the boxes and not be open to legal challenges. Clause 12 should be deleted or amended to state that such policy statements should not be adopted as national policy statements until they fully comply with all the requirements for appraisal and consultation as set out in the Bill. It is not just opposition parties that are against dusting down old policies and adopting them as national policy statements. There was opposition from the Minister's party in another place. At Second Reading, John McDonnell said:
	"Any attempt to incorporate the aviation White Paper into a policy statement would be an abuse of power".—[Official Report, 10/12/07; col. 89.]
	Paul Truswell said that that was,
	"something I do not feel I could possibly support".—[Official Report, 10/12/07; col. 66.]
	The current aviation policy does not affect me. My opinion does not really matter, but the policy affects tens of thousands of members of the public and organisations that feel aggrieved. It matters to them. I have tried to point out the pitfalls should the Secretary of State be allowed to adopt an old policy document as a national policy statement. As the noble Lord, Lord Greaves, said, the system will get clogged up in the courts and the objective of speeding up the planning process will fail unless the Minister ensures that all national policy statements are planning documents of the highest order.

Lord Cameron of Dillington: I rise to speak to the stand-part debate on Clause 12. I start by repeating my mantra that these national policy statements are hugely important. They are a big step forward and are different from anything that has gone before. If they properly pass all the tests of democracy, they will be the key to making the IPC an effective and respected body. They will make the Bill work. National policy statements decided at a national parliamentary level with national consultation are a new development for our planning system, and they are a good idea. Whatever process was gone through for previous documents—PPGs, PPSs or White Papers—they were not examined by the Commons and the Lords or by the public in the knowledge that they were going to rule the decisions of the IPC on a range of bad-neighbour projects. Therefore, all national policy statements must start from scratch after the Bill has passed. It would be underhand for it to be otherwise. The Government will, of course, wish to start the NPS process from the basis of previous or existing statements, or even a White Paper—no one in his right mind expects them to start with a totally blank sheet of paper—and they probably want to get started now, before the Bill is passed. That is fine, but the process of debate and consultation must be as though they were starting from scratch. In that case, Clause 12 is redundant. I cannot see the point of it, unless the Government have some sort of ulterior motive.

Baroness Hamwee: Six of the amendments in this group are tabled in my name. I shall start with Amendment No. 91, which stands on its own. The Minister and I have exchanged e-mails about it. It relates to Clause 12(1)(b), which states that,
	"the statement sets out national policy by reference to one or more statements".
	If Clause 12 stands part, I propose that rather than referring to other statements, they should be included in whole or in part in the national policy statement. To allow reference to them could lead to a lack of clarity and certainty. There would be a temptation to be just a little bit sloppy and to abbreviate a bit too much. It is hugely important that the NPS should be clear for consultation purposes and when it is being implemented by the IPC.
	My other amendments propose that, rather than making use of a statement issued before commencement, the relevant period is between January next year and commencement—I do not know whether the Minister can tell us when commencement is likely to be—to ensure fresh consultation, appraisal, parliamentary scrutiny and so on in line with the intentions of the Bill. Like others, I am very concerned about the prospect of a pretty elderly White Paper, the air transport White Paper 2003, being converted without national consultation, with the sustainability and climate change debate having moved on.
	I appreciate the assurances given by the Minister, John Healey, when this was debated in the Commons, but this is an instance where we do not need to be caught up in the "I would not have started from here" syndrome. Like others, I believe that it would be overhasty for Clause 12 to apply. Specifically, on Clause 12(3), which would allow the Secretary of State to take account of pre-commencement consultation, does the Minister believe that on any matter that may be the subject of an NPS there has been consultation adequate for the Bill and for the ministerial assurances that we have had, especially given the way that consultation and designation processes have developed during the course of debate on the Bill?
	I sum up Clause 12 as undermining the statements and assurances that the Government have made. It seems to be saying, "PS. But we will get on with it come what may". I am sure that is not what is in the Minister's mind, but it is hard not to read it that way, despite the good faith that has been expressed.

Lord Boyd of Duncansby: I have two quick points to make. I confess that I do not know enough about the 2003 air transport policy to know whether it would fulfil the criteria for a national policy statement, but, as I read Clause 12, it concerns power to designate a statement as a national policy statement, even if it had been issued,
	"before the commencement day, or ... sets out national policy by reference to one or more statements issued ... before the commencement day",
	and allows pre-commencement consultation and publicity to be taken into account. Clause 5(2) defines national policy statements, and Clause 5(4) states:
	"A statement may be designated as a national policy statement for the purposes of this Act only if the consultation and publicity requirements set out in section 7, and the parliamentary requirements set out in section 9, have been complied with in relation to it".
	So it is quite clear that the safeguards are there.
	Whether the air transport policy fulfils those conditions is another matter, which we can debate at a different time, but I am alarmed at the prospect of Clause 12 being removed altogether. For example, I am aware that at least the preparatory steps for consultation and publicity for the nuclear national policy statement have begun. BERR is undertaking the strategic siting assessment consultation at present. If Clause 12(3) were to be removed, there is a least an argument that the Secretary of State would be unable to take into account that consultation and publicity process, which is already being undertaken. Is that the intention of the Conservative Front Bench? It would be alarming if we were to go back to year zero , as it were, now, given the challenges that we face. We need to improve our infrastructure rather rapidly.

Lord Tyler: Despite the safeguards to which the noble and learned Lord, Lord Boyd, referred, which are to some extent contained in other clauses, I confess that the whole of Clause 12 fills me with alarm. I share the concerns of the noble Lord, Lord Cameron, and the noble Earl, Lord Cathcart. It is rather extraordinary that the Government, at all stages of the Bill in both Houses, have said that this is a new, improved and greatly enhanced system that we are going to engage in in future. Yet we could treat previous examples as though they had gone through this process.
	I shall take an extreme example. Reference has been made, not least by the noble Earl and my noble friend Lady Hamwee, to airport location. I date right back to the Roskill commission on the third London airport, when I was planning adviser to the Royal Institute of British Architects. Everyone in the country felt that the commission had got it wrong because it was not location-specific; it looked at a whole range of locations. Thirty years ago, the commission produced a minority report by the eminent Professor Colin Buchanan that there should be a third London airport, sited at Maplin Sands. Thirty years later, the Mayor of London is suggesting that again.

Lord Jenkin of Roding: I declare an interest, which is in the register, as a consultant to the Thames Estuary Airport Company.
	I must correct the noble Lord. The mayor's proposal is not a revival of the Maplin Sands project; it is for the construction of an entirely new island in the Thames estuary, where there is no airport at all at the moment. This project has gained a good deal of support. However, the mayor is not reviving Maplin, and we should make that clear.

Lord Tyler: The noble Lord makes my point for me. What comes around goes around. I accept that it may not be precisely the same site—my geography is reasonable—but the point is made that the arguments that we were engaged in 30 years ago can come around again. That is the only point that I seek to make. Surely no one in your Lordships' House is suggesting that that statement of policy or that consultation was appropriate to this, so we must narrow down very precisely what the Government have in mind or we could be ranging back.
	In the debate on the previous clause, the noble Lord, Lord Turnbull, quite rightly identified the dilemma of, on the one hand, trying to be specific and clear and avoid blight and, on the other hand, enabling communities in a democratic society to take proper decisions about where they prefer a particular development. That is what the Bill is all about. The Minister has very precisely indicated at all stages of the Bill, as have her colleagues in the other place, that this is a new and improved way of dealing with these problems. That is great, but if it is, how can the Government possibly maintain that there can be any element of retrospectivity going back to previous policy statements and previous consultations, because that would suggest that nothing will be improved under the present Bill and that there is no better methodology?
	Clause 12 is really most peculiar. In both principle and practice it seems to introduce an element of retrospective legislation, which this House, above all other parts of the democratic structures of our country, has always set its face firmly against. I hope that the Minister will be able to explain in her response to this short debate why the clause is felt to be necessary.

Baroness Andrews: I shall most certainly try to do that, but I do not think that I can improve hugely on my noble friend's explanation, which was excellent. I did not expect the clause to command so much contention. It is completely benign. There is nothing sinister about it whatever, but the description offered by the noble Lord, Lord Tyler, was the exactly the opposite of what we intend to do. He is right about the NPS being a new way of doing things—it is necessarily so—but he did not understand exactly what the clause seeks to achieve. I am happy to try to make that clear, because I would hate to think that there was ambiguity about this.
	In brief, Clause 12 allows for a statement of policy that is issued before the commencement date to be designated as a national policy statement for the purpose of the Bill. The clause also allows the Secretary of State to take consultation and scrutiny carried out before the commencement day into account in deciding if the tests set out in Clauses 7 and 9 have been met. It also allows Ministers to treat an appraisal of sustainability that has been carried out before the commencement day as meeting the requirements of Clause 5(3).
	I have listened very closely to what Members of the Committee have said on the clause and the amendments about the timing. The noble Lord, Lord Jenkin, started by saying that he wanted to be sure that there was no temptation to avoid the processes which the Bill requires in terms of the high standards of consultation, sustainability and so on. As I address those amendments, I shall seek to ensure that he has that assurance. I will also address the amendments in the group tabled by the noble Baroness, Lady Hamwee.
	I understand the fears expressed by Members of the Committee that somehow here we have an intention to bring existing statements of policy being grandfathered into the new regime and bypassing the high standards that the Bill sets out for NPSs, which are key to the new regime. They must be robust, legitimate and credible. I should like to make it clear that the Bill provides clear safeguards which will ensure that all NPSs are subject to the tests set out in the Bill. I hope that that will satisfy the Committee that the clause is very important.
	The production of national policy statements where these do not already exist has got to be a thorough process, but, in all logic, it cannot be a wholly new policy process. Government policies on strategic infrastructure have developed and will develop over time at a different pace in different areas. In some cases, we will need to build on a range of work to develop policy which could contribute to a national policy statement, or a policy statement may have been issued, which appears to be a potential national policy statement, before the commencement date of this Bill.
	We are not talking about designating something that was written a long time ago and is out of date. The answer to the first question raised by the noble Lord, Lord Jenkin, coming from the Local Government Association, is that we certainly are not talking about designating an old policy statement and simply treating it as if it were new or did not have to satisfy any tests. I think that that was the assumption that the noble Lord, Lord Tyler, was making; namely, that somehow we would simply take previous White Papers or whatever and designate them as if they had gone through the process. That cannot happen.
	We are talking about ensuring that Ministers can take on board all the good work, the analysis, the evidence and the judgments that have gone into making current policy sound. It would not make sense to throw this away. We cannot start from scratch when we are looking at the balance of our energy needs, the distribution of our railway networks or where we need water in relation to building housing. We have a great deal of intelligence and evidence to suggest how we should go forward. But the national policy statements, for the first time, set out a clear direction of travel as to why we need infrastructure and, in some cases, where we need it. That is what is new. It is the processes of consultation, which are spelled out in great detail. Each state of the process from national policy statements through to the decision and sustainability will be the essential test of whether this national policy statement will stand up to public and parliamentary scrutiny.
	It is not sensible to throw that work away. We cannot start from scratch. It would be completely ridiculous to do that. Giving the Secretary of State this power to designate pre-existing statements of policy will enable us to take account of earlier work. At the same time, we recognise that the legal significance of national policy statements as the framework for IPC decisions in the proposed system means that it is vital that they all meet the requirements for national policy statements. It is not a question of dusting off anything.
	Accordingly, the obligation to carry out an appraisal of the sustainability of the policy set out in a national policy statement in Clause 5(3)) continues to apply in relation to pre-existing statements that are designated under this clause. Ministers would also have to ensure that the standards for consultation and scrutiny set out in Clauses 7 and 9 had been met. I can confirm that the clause allows Ministers to take into account consultation carried out before the commencement of the Bill, and indeed in response to a question put by the noble Baroness, the consultation on, for example, the air transport White Paper was very thorough. However, we have to apply different tests for national policy statements. As we come to debate consultation later, we will talk about the ways in which the new updated code for consultation might affect it.
	We made clear during debates in the other place that there is no question of bypassing the quality controls set out in the Bill for new statements of policy. I am happy to put that on the record again today. Before a pre-existing policy statement is designated as an NPS, Ministers will ensure that the standards for consultation, appraisal of sustainability, which we debated last week, and parliamentary scrutiny, which we are to debate in a while, have been met. In response to the noble Earl, designating a policy statement will mean going through the parliamentary scrutiny process.
	If NPSs are to be effective, whether they are based on new or existing policy, they must be robust and authoritative. Therefore I should say to the noble Lord, Lord Jenkin, that there is no incentive for us to try to cut corners. We need to demonstrate that we have done everything we intend in this Bill to make policy statements sound in their policy and credible in terms of public perception and understanding. This part of the Bill does not set out in detail how consultation should be undertaken because NPSs will vary greatly and therefore the consultation will also be different. However, this will not allow the standards for good consultation to be bypassed. We have made it clear that consultation will be thorough and effective, and will be in accordance with the recently updated code of practice on consultation. There may be difficult issues to address and tough choices to make in relation to NPSs, but our task is to expose these through consultation and inform the public so that we take them with us. Indeed, that was the exact phrase used the other day by some of the experts who came to advise us on the Bill. We want a serious national debate on serious national issues.
	The noble Lord raised the question of the aviation White Paper. Perhaps I may reply to some of his questions in this context because it is a good example. As I have said, before a pre-existing policy statement was designated as an NPS, Ministers would have to ensure that the standards for consultation and appraisal of sustainability set out in the Bill had been met. We are already committed to produce a further progress report on the air transport White Paper between 2009 and 2011, which will provide a good opportunity to designate the ATWP in conjunction with that report. But let me reassure the noble Lord that there can be no suggestion that the ATWP will be designated as an NPS wholesale without undergoing the process set out in the Bill.
	The Government have stated their intention to produce an NPS for airports that will integrate the air transport White Paper in a way which meets the policy and the statutory requirements set out in the Bill. It will therefore be subject to an appraisal of sustainability, consultation and parliamentary scrutiny. We will be scrupulous in ensuring that it meets the standards set in the Bill, and if necessary further work in those areas will be carried out as part of the progress report. Further, Parliament will obviously scrutinise what Ministers have done before any NPS, including the aviation NPS, is designated, and will doubtless make sure that if there are any problems, Ministers would take them into account before final designation. If, ultimately, people still felt that the Government had not met the standards in the Bill, we would be liable to challenge in the courts.
	Amendment No. 93 in the name of the noble Lord, Lord Dixon-Smith, and the noble Earl, Lord Cathcart, would alter Clause 12 to require that where a Secretary of State wished to designate a pre-existing policy statement as a national policy statement an assessment would be carried out in accordance with the SEA directive We discussed that issue briefly last week and I would not wish to detain the Committee unnecessarily by repeating those arguments here. We will ensure that pre-existing statements of policy will have to meet the same standards for appraisal of sustainability as new statements of policy before they can be designated.
	As the noble Baroness, Lady Hamwee, said, Amendment No. 91 would prevent Ministers from designating policy in a national policy statement by reference. The amendment would require instead that all policies be incorporated into the text of the NPS and that if there was a reference it would have to be clear—not elliptical, not sloppy and not ambiguous. I take her point. Where Ministers designate policy by reference, they will do so clearly. It is necessary that we do so because, if national policy statements are to be effective, they will have to be comprehensive in order to demonstrate that they have taken on board the range of relevant policies. To ensure that that is possible across the suite of NPSs, we have to have flexibility to make external references without incorporating every detail—otherwise we would end up with an NPS of considerable size. We intend that statements will be taken into account, but we have to do it by reference.
	I take the stricture about the necessity for clarity—this is already being scrupulously addressed—and for the business of cross-reference to be clear. I take the point that the noble Baroness is making, but incorporation will not solve the problem. However, I have listened to what she has said.
	This has been an important debate. I hope that I have reassured noble Lords that the clause is necessary as a statement of what we have to do in order to be sensible and consistent with policy work that has gone on previously and to ensure that we can make best use of our resources, our intelligence and our forecasting. I hope that the noble Lord will feel able to withdraw his amendment.

Lord Jenkin of Roding: I have lit a fuse that has gone off all round the Committee. The anxieties about Clause 12 are very real and, with the greatest respect to the Minister, I am far from satisfied that she has answered all the queries. I heard what she said, for instance, about the aviation White Paper, but I am completely unclear as to what further processes the Government envisage if they intend to build on the aviation White Paper as the core of a new national policy statement.
	I was wise not to try to speak to all the amendments in this group because everyone who has spoken—and I am extremely grateful to all those who did—has raised considerable anxieties. I heard clearly what the noble Baroness said and I note that there is no temptation to cut corners and no question of bypassing the requirements of the Bill, but I am not at all clear, from what she said, how that is going to be achieved. The aviation White Paper is one example and a number of others were mentioned.
	I do not want to prolong the debate. This has turned out to be an important issue. We all support the concept of the national policy statements. We have a number of queries about the details and the procedure but I think that all parts of the Committee consider it a positive and encouraging step forward. I want to see the Bill on the statute book with that in it, but the suggestion that the Government can go back and rake over old policy statements and, as it were, tart them up so that they appear to comply with the requirements of the Bill is immensely worrying. The noble Baroness should not be surprised if a number of noble Lords in various parts of the Committee, having studied her remarks carefully—as I shall certainly do—will want to come back at a later stage to try to get greater clarity and, if necessary, perhaps strike Clause 12 from the Bill. But that is for the future. For now, of course, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 43 to 55 not moved.]
	Clause 5 agreed to.
	Clause 6 [Review]:

Lord Dixon-Smith: moved Amendment No. 56:
	Clause 6, page 3, line 32, at end insert—
	"( ) The Secretary of State shall consider continuously whether each national policy statement should be reviewed."

Lord Dixon-Smith: Clause 6(1) states:
	"The Secretary of State must review each national policy statement whenever the Secretary of State thinks it appropriate to do so".
	One of the things that I regret is that as I have grown older I have become somewhat more cynical, which has led me to think about that provision. What happens if, when a review of the national policy statement is clearly appropriate, the Secretary of State none the less thinks that it is inappropriate? There could be all sorts of reasons for such a decision: the country could be heading towards an election, for example.
	The only certainty about the future is that we do not know. A policy statement will be made on the basis of the most up-to-date knowledge available at the time that it is promulgated; it will be consulted on and be as good as it can be made to be. I would be the first to acknowledge that. But in many of the fields that we are discussing in relation to national policy statements, things will change. I would not begin to predict the changes in transport, power generation or anything else—that is not the purpose of the amendment. However, we know that there will be change. We also know that that change will probably arise in an inconvenient way and at an inconvenient time. Amendment No. 56, therefore, is devised to make the review of a national policy statement a matter for the Secretary of State to keep under continuous review.
	I am not sure that I like the wording of my amendment any better than the wording of Clause 6(1). However, we need to think seriously about this, as the wording in the Bill is not wholly unsatisfactory. If my amendment is not wholly satisfactory, I apologise; if somebody can come up with a better form of wording, I should be very happy to see it in the Bill. But I do not think that the subsection should be left as it stands. I beg to move.

Baroness Hamwee: I thought that "continuously" was a bit hard on the Secretary of State. My Amendment No. 58 refers to,
	"not less frequently than every five years".
	That is my bid for certainty. Amendment No. 61 would enable a parliamentary challenge to the Secretary of State's decision that an amendment to an NPS is not material.
	Included in the group are my Amendments Nos. 88 and 89 to Clause 11. I become more reluctant, as the years go on, to enter into the may/shall debate, but it seemed to me on this point that if the Secretary of State had gone through all the processes and come to the conclusions that Clause 11(1) predicates, rather than saying that she "may" suspend the operation of an NPS, the Bill should say that she should do so, because it is so extreme. That is my first proposed change to Clause 11(2).
	Amendment No. 89 would enable the Secretary of State to suspend the operation of the part of the NPS that was affected. She should not be at liberty to change some unrelated part. I am sure that that is not intended, but the provision reads as if it might be a possibility.

Lord Jenkin of Roding: I share the anxiety of the noble Baroness, Lady Hamwee, about the word "continuously" in the amendment moved by my noble friend on the Front Bench. I am not sure how that would work. My amendment and that of the noble Baroness would require a clear, fixed period after which there must be a review. The wording of our amendments would mean that, after five years, there would need to be a review. That is a maximum; it is entirely open. If there is a major change of circumstance, a national policy statement could be reviewed earlier than that. However, simply to leave it at large to the Secretary of State to decide when to review, which is what the Bill says, is quite unacceptable. We all recognise that we are in a world of rapid change. We are also in a world in which there are often great public, even political, sensitivities—that is the subject matter of the Bill. However, if there is a duty on the Secretary of State not to leave a review longer than five years, it will be clear what he or she then has to do. It is better to be specific on these issues than simply to leave the matter at large.

Lord Turnbull: No case should ever go to the IPC on the basis of a stale NPS. That is the abuse that we want to stop. There may be an NPS where the project has taken place and there are no further applications. It is not necessary to review an NPS in which there is no prospect of any cases being brought in that area. However, where cases are being brought, I agree that there should be a presumption, created somehow or other, that the NPS should be reviewed and that one cannot go to the next stage on the basis of something that is old.

Lord Bridges: I intervene briefly and with some hesitation, because I am disturbed equally by the existing text and the proposed amendment. They alight on the point of central difficulty in the Bill; namely, how we have a solid, sensible policy, carefully worked out at the centre, which will apply, almost invariably, to a particularly difficult and sensitive part of the country. I am not convinced that we can put down in words a solution to the problem. It will require great sensitivity on the part of the Ministers concerned and a realisation that, however far you think that you are looking ahead in making a decision about a new airport or nuclear power station, something may come along and you may have to change your policy. We should ideally try to find a form of words that commits the Government of the day to a serious policy and to making every effort to get everybody to agree with it, but which admits to the possibility that, in exceptional circumstances and after careful consideration, you might have to change it. That is a difficult task, but I do not see it in the Bill.

Lord Boyd of Duncansby: I think that everybody would agree that there has to be a review process and an obligation to undertake it. I question whether putting in timescales is the right way to go about it, because that might suggest that the Secretary of State does not have to review until the five-year period, or whatever period is stipulated, is up. Equally, to say that the policy statement should be continuously reviewed may impose an undue obligation or undue pressure on the Secretary of State.
	I draw the Committee's attention to Clause 13(2), which relates to legal challenges. It states:
	"A court may entertain proceedings for questioning a decision of the Secretary of State not to review a national policy statement only if",
	certain conditions are fulfilled. The clear implication is that, if a request was made to the Secretary of State that circumstances had changed and that there was now material on which he should review the national policy statement, and he then, having taken account of that, refused to do so, the court could entertain a challenge to that. There will always be a trigger; when people put new information before the Secretary of State, he or she will have in his or her mind the clear stick of a possible judicial review.
	These are difficult issues. I appreciate that we are all trying to get to the same point. The threat of judicial review on the Secretary of State's refusal to review a national policy statement provides an obligation on him to do so when there is new material.

Lord Jenkin of Roding: Does the noble and learned Lord share my feeling—he referred to Clause 13—that with the whole of these provisions one is leaving too much to the courts via judicial review? As I said the other day, this has got a bit out of hand. The figures show a hundredfold increase in judicial review cases in recent years on what went before. I find the readiness of the courts to engage in policy making, usurping the function of the Executive and legislature, a disturbing development.
	It should be possible for Parliament, when considering the Bill and particularly this question of the review, to reduce the prospects of an appeal via judicial review by being sufficiently specific. I recognise that the clause from which the noble Lord quoted seemed to envisage a whole lot of judicial review, but I would have thought that we would want to reduce the possibilities of that. Apart from anything else, it introduces a whole new dimension of uncertainty. As the Minister has frequently said—and I entirely agree with her—one purpose of this legislation is to try to reduce uncertainty, so that investors and those who will spend huge sums of money on building up the infrastructure have a much clearer idea of where they stand.
	That was a long intervention, for which I apologise, but does the noble and learned Lord, Lord Boyd, with his great experience in this, feel that there is substance in what I am saying—that we should try to be more specific to reduce the opportunities for judicial review?

Lord Boyd of Duncansby: Whatever our respective views on judicial review, its growth is a genie that is out of the bottle. I suspect that we would have great difficulty putting it back in completely. The Bill attempts to limit and confine the areas on which there might be judicial review, which I think is the purpose behind Clause 13. I suspect that, even if that clause was not there, the Secretary of State would always have the prospect of a judicial review of a decision not to review a national policy statement if material was placed before him that was relevant to his policy. I pointed to the clause to show the Committee that beyond any doubt there is a right of judicial review in those circumstances; it is prescribed in certain respects but, in any event, it would be there anyway.

Lord Jenkin of Roding: I am most grateful for that. I apologise for detaining the Committee a moment or two longer. We may come to this matter on Clause 13, but there is a real concern here. The noble Lord, Lord Turnbull, will know from being in the Civil Service that there is a document called The Judge Over Your Shoulder. It was so important for senior officials to realise that that was the environment in which they had to operate that it was quite recently republished. I find this a disturbing prospect because it gives rise to a significant degree of uncertainty about how the whole system will operate. It is a sort of unexploded bomb that can blow up the best-devised plans and processes and make everyone have to start again.

Lord Mackay of Clashfern: It is strange that in this clause the Secretary of State "must review", but then you find that it is when he "thinks it appropriate". How does that work? How does the compulsion operate? It is not the clearest possible formulation of the Secretary of State's position. Perhaps the provision should read,
	"whenever it is appropriate to do so",
	without the Secretary of State's opinion being necessarily the determining factor. For example, it should be possible to indicate some factors that would point to a review such as those referred to by the noble Lord, Lord Turnbull. Are there applications in the area of the particular policy statement in question that raise issues about whether the policy statement is really up to date?
	I have some views, of course, on the point made by my noble friend Lord Jenkin of Roding about judicial review. The best way to limit judicial review is to make it clear what the intentions of Parliament are in relation to these matters. Clause 13, which we will come to, is intended to assist in that process.

Lord Woolmer of Leeds: It would help me, if not other noble Lords, if the noble Lord, Lord Jenkin, could advise us on the following point. Clause 6 states that the Secretary of State, having reviewed a national policy statement, might "amend", "withdraw" or,
	"leave the statement as it is",
	and the need for public consultation in subsection (4) applies only if an amendment is proposed. If I have read this clause correctly, there is no obligation to have a public consultation on a review of a national policy statement.
	It would be helpful if the Minister could clarify that because, if the Secretary of State was under an obligation to review every five years or continuously, and if that meant that as part of the review process the full panoply of public consultation had to take place, you could be in a never-ending process of consultation. We are dealing with major infrastructure issues, and the last thing that the infrastructure industries would want is continued uncertainty about whether there is confidence to look ahead for years. We are dealing with areas that are looking for more confidence about long-term frameworks.
	My question to the noble Lord, Lord Jenkin, and to my noble friend the Minister is: when a review of the national policy statement is under way would that be accompanied by the whole process of consultation? If so, I for one would be loath to see in the Bill a review either continuously or every five years. That will mean that even before the five years was up a whole process of consultation would be going on. There will be no stability at all, because in the minds of the industries concerned, a review must mean that the policy can change. If the presumption is that policy can change every five years, decisions would have to be reviewed with all the necessary consultation. People who like to see change would argue strongly for it and Parliament would have to debate it. That could be a real problem. It would be helpful to me at least to see how these amendments tune in with the whole question of consultation and review.

Lord Jenkin of Roding: I shall not reply at length to the question of the noble Lord, Lord Woolmer; I am quite happy to leave that to the Minister. However, I am delighted that my noble and learned friend Lord Mackay is directing his considerable intellect to this question. He may be able to help us on how best to devise a form of words that reflects what most people seem to want. There should be a process of regular review whenever necessary.
	However, on the amendment—like the amendment of the noble Baroness, Lady Hamwee—if a review produces changes which do not materially affect the main thrust of the thing, there should not necessarily be the whole panoply of consultation and parliamentary consideration. As a result of this debate, I do not think the clause has it right now. However, perhaps we shall hear from the Minister; she may be able to reassure us.

Baroness Andrews: I am grateful to Members of the Committee for struggling to help me with the clause. I have listened to all the advice that has come across the Committee about how we can make it better. My first task is to explain what we think that it will do, and why it takes the form that it does.
	The noble Lord, Lord Jenkin, began by saying that we all really want to get to the same simple place: to ensure that decisions should not be made on outdated policy. Our debate has largely been about that, because we all agree with it. I will argue that there is provision for necessary flexibility of review within a stable environment in the Bill, which is what we want. By putting forward different sorts of timescales, the amendments challenge that. The suggestion of the noble Lord, Lord Dixon-Smith, about "continuously" has been pretty comprehensively dealt with. It is in fact a recipe for general instability. We certainly do not want a continuous revisiting of any NPS in those terms.
	Reading Clause 6 alongside Clauses 11 and 106, we find that they set out the circumstances in which a review might be appropriate: when there is a significant change in circumstances on the basis of which any policy set out in the NPS was decided, and where, were the policy different, it will make material difference to decision making. We are looking at circumstances which change the basis on which policy is decided.
	I am grateful to the noble and learned Lord, Lord Mackay, for his intervention. The problem with trying to find a trigger and describe a set of circumstances is that national policy statements will vary significantly with different types of infrastructure. In some cases, the policy framework over the next 10 to 30 years may change rapidly and significantly. I am not enough of an engineer or a scientist to be able to say which technologies; maybe the noble Lord, Lord Jenkin, can. However, different technologies such as clean technologies will certainly come on-stream. We hope that carbon capture will come on-stream. There may be things that move faster than that, which we cannot currently predict.
	Other aspects of technology and heavy engineering may change more slowly and incrementally. This is why it is difficult to pin down in the Bill exactly what we would look for in terms of a change of circumstance, so the flexibility for the Secretary of State to respond to circumstances with the information at his or her disposal is crucial. That is why a rigid review of five to six years is inappropriate. A continuous review creates its own problems, but a rigid review might miss the point altogether. This takes us into the question of ministerial accountability. I shall come to that in a moment. We have had previous long discussions about why national policy statements now offer an opportunity for the Secretary of State to be visibly accountable for setting policy in a way that Ministers are not at present. That policy will then determine the way in which planning decisions are made. Being able to judge the circumstances on the basis of evidence that the time is right to update a statement is a challenge but is the right and proper responsibility of the Minister. We seek to create a stable and certain environment for infrastructure development to allow investment decisions to be made and to allow opportunities for the NPSs to serve exactly the purpose for which they are intended—to be an up-to-date and robust statement of what is necessary.
	Amendments Nos. 57 and 58 would put a timetable around the process and would impose artificial and unhelpful constraints. I understand the points that have been made across the Committee. As I said, it is important that we have the right process for reviewing national policy statements. I believe that the provisions that already exist provide this and strike the right balance.
	The Bill provides a strong safeguard to ensure that changes in circumstances are taken into account. Each Secretary of State charged with maintaining an NPS which is up to date and as helpful as possible to securing resources and investment is not likely to default on a serious duty to ensure that they are up to date. What would be the point of the Secretary of State neglecting that duty when the whole rationale of this measure is to ensure that we have a relevant policy which is right for the present and the future? But if there is a perception that the Secretary of State is neglecting that duty and has not reviewed a national policy statement when a review should have taken place, the decision not to review can be challenged in the courts, as my noble and learned friend Lord Boyd said. I take the point made by the noble Lord, Lord Jenkin. Certainly, none of us wants to encourage judicial review, far from it. Nevertheless, the appropriate safeguard is there.
	However, Clause 106 offers additional protection. The purpose of the flexibility to update policy is driven by the need to ensure that necessary infrastructure is not frustrated because the NPS is out of date. This clause provides for occasions where a significant change in circumstances, although not at that point reflected in a national policy statement, was likely to affect the decision on an application. In this instance, the Secretary of State has a limited power to intervene in such applications. This gives him flexibility to retrieve an application when there is no time to review an NPS. Therefore, we have two safeguards. We have protected the process from becoming out of date and we have rejected a straitjacket on decisions. The opposition amendments would place an unnecessary burden on government and create an unhelpful environment, not least for investors.
	Amendments Nos. 88 and 89 concern the "shall/may" debate, which has cropped up rather late in the day. However, we are all glad to see it. These amendments would require suspension of all or part of an NPS where there had been a significant change in circumstances on the basis of which the policy was set out. The concern here is to ensure that the IPC only ever takes a decision on a case where there is an up-to-date NPS setting the framework for that decision. I offer the Committee reassurance here. As I have said, Clause 6 on reviews is understood alongside Clauses 11 and 106, which set out the circumstances in which a review might be appropriate; that is, when there is a significant change in the circumstances on the basis of which any of the policy was decided.
	If there had been a significant change in circumstances which meant that the NPS no longer provided an adequate framework for the IPC to take a decision on a case, I can assure the noble Baroness that the Secretary of State would not permit it to take the decision. The Secretary of State would tell the IPC to suspend its examination of the case pending conclusion of the review of the NPS, using the power in Clause 105, or, if the case was urgent, she would use the ministerial power of intervention set out in Clauses 106 and 108. In that case, the IPC could examine the case but make a recommendation to the Secretary of State, who would take the decision herself.
	Why does the Secretary of State need this flexibility? Why is it "may" and not "shall"? The substance of the argument is to maintain consistency of accountability. In maintaining that discretion, the Secretary of State retains accountability; otherwise, "shall" becomes a set of external facts on which judgment is made. Therefore, the Secretary of State needs that flexibility and accountability.
	As I said before, Ministers are responsible for policy, and it is they who should decide when a policy statement should be reviewed, and whether the circumstances were such that some or all of an NPS should be suspended.
	It may be helpful to explain what Clause 6 seeks to achieve before I deal with Amendment No. 61. Clause 6 requires the Secretary of State to review a national policy statement whenever he or she thinks it appropriate to do so. If the Secretary of State decided to amend an NPS as a consequence of the review, we would expect this amendment to be subject to the same requirements for appraisal of sustainability, consultation and publicity as a newly designated NPS. To answer my noble friend's question, the Bill does not preclude consultation while you are reviewing NPSs. There is a process for consultation on the review.

Lord Woolmer of Leeds: Is my noble friend saying that if a review of the policy statement takes place, that in itself does not require the full panoply of consultation, but if the review leads to a proposal for amendment the consultation will take place? Is that what she is saying?

Baroness Andrews: That is my understanding. As this matter raises quite technical issues, I shall send a full letter to noble Lords dealing with this debate and that on the previous amendment.

The Earl of Caithness: I am grateful to the Minister for giving way. What happens if the proposed change is politically driven? For example, the current Secretary of State may decide, after full consultation, that there will be a third runway at Heathrow. However, the Conservative policy is not to have a third runway at Heathrow. Nevertheless, there is an existing national policy statement for a major piece of infrastructure. I refer also to the decision taken on the M40 in 1997, which was changed by the Labour Party. Following the point made by the noble Lord, Lord Woolmer, does one have to go through a further publicity exercise when a subsequent Secretary of State takes a totally different view on the previous consultation and wants to do something different?

Baroness Andrews: National policy statements set out the criteria on which decisions are made. The criteria are based on evidence, intelligence and foresight and are subject to public scrutiny and parliamentary process. On that basis, I suggest that it is difficult for a politically driven judgment to be made, because so much will have been settled in policy. However, if for the reasons that we have discussed the NPS has to be changed to reflect changing technologies, forecasts or whatever, and that requires not a third runway but another option, clearly that process would require public consultation.
	I plough on. To return to the noble Baroness's amendment, if the Secretary of State thinks that the proposed amendment does not materially affect the policy as set out in the national policy statement, subsection (5) of Clause 6 disapplies the requirement for the sustainability appraisal, consultation and publicity. That is the converse of the statement that I have just made. The noble Baroness's amendment would require the Secretary of State to lay an order designating the proposed amendment as not materially affecting the policy. That would bring the order within the parliamentary procedure for statutory instruments. Such a safeguard is not proportionate, because some revisions to NPSs—the noble Lord, Lord Jenkin, pointed this out—may simply reflect smaller administrative changes. Requiring a parliamentary process in those circumstances would not be appropriate. I assure the Committee that any material policy change will be subject to the full procedure.
	Given my assurance that I will write to noble Lords and pursue some of the questions that they have raised about the change of circumstances and public consultation on the changes, I hope that the noble Lord will be able to withdraw his amendment.

Lord Dixon-Smith: I had not supposed that my rather naive amendment would provoke such an intense and appropriate debate. I am grateful to all those who have contributed. Like the noble Lord, Lord Woolmer of Leeds, I agree that we cannot have continuous uncertainty. That was not the intention of the amendment. It is certain that progress in scientific development and change will not comply with any timescale that we are stupid enough to write into the Bill, so there must be a mechanism.
	I am grateful to the noble Baroness for drawing our attention to Clause 106, which deals with a "significant change in circumstances". Surely if the system was working properly the significant change in circumstances would have provoked the review anyway, before it got to the commission, and the Secretary of State would have had to intervene in what I would call an active planning application.
	There are difficulties in what the noble Baroness has said. A moment ago, my noble friend Lord Caithness intervened to ask what might happen if there was a politically driven consultation. I remind the noble Baroness, although I am sure that she needs no reminding, that this became an issue during consideration of the housing legislation, when there was a question of whether housing should go to the housing association or stay with the local authority in particular circumstances. At that point, it was deemed that, if a local election had been clearly won on the basis of a clear proposition that the housing should be determined in a particular way, that was a sufficiently adequate public consultation. I find myself wondering whether that in fact answers my noble friend's question, but I suspect in the case of the Bill that it does not. That means that we shall have to treat the answer—

The Earl of Caithness: I say to my noble friend that I do not want it on the record that I was talking about a politically driven decision. It is a decision taken by a politician, which is very different. I remember when I was a Minister having exactly this argument with Mr Wedgwood Benn, who, there having been an inquiry, took a totally different view from mine and wanted me to change my mind. It is not politically driven; one party takes a view of what the national policy should be and, when that party is elected, it can change the national policy statement without a whole other inquiry and public consultation, because it had that during the election campaign.

Lord Dixon-Smith: I am grateful to my noble friend, but he has reinforced the statement that I made some time ago that all these major decisions really ought to be taken finally at the political level, because they are essentially political decisions. That is what the Bill has been trying to escape from but, in the end, it cannot do it.
	I am particularly grateful to my noble and learned friend for his intervention, because it seems to me that we have to think carefully about this. Certainly, his advice was very helpful. I hope that when the noble Baroness takes the trouble to write, she will perhaps be able to provide a little bit of certainty after a debate that, if I may say so, has increased our uncertainty rather than resolved it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 57 to 61 not moved.]
	Clause 6 agreed to.
	Clause 7 [Consultation and publicity]:

Earl Cathcart: moved Amendment No. 62:
	Clause 7, page 4, line 13, at end insert—
	"( ) The Secretary of State shall provide for early public participation, when all options are open and effective public participation can take place, within a transparent and fair framework."

Earl Cathcart: The amendments in this group are to help to make Clause 7, on the consultation and publicity process, more comprehensive. We define the steps that ought to be taken much more closely than does the Bill. The Barker report found that most people will not support any new energy infrastructure when specific projects are proposed near where they live. That is a fundamental conflict between the urgent need to build new infrastructure and the need to empower local communities. It is vital that all those involved in and affected by national infrastructure policy and subsequent planning decisions feel empowered and able from an early stage to have satisfactory input into the process that leads to decisions on proposed developments.
	Recently, when the Minister chaired a meeting for noble Lords with representation from the CBI, energy, ports, wind and town planning, we were told twice that the national policy statement for nuclear had already been started. We have heard that again today from the noble and learned Lord, Lord Boyd. That was news to me. Had I missed something? When and how would I be consulted? No doubt it is still in the early days, but it raises the whole question of how consultation will take place and what publicity is required. How will organisations and members of the public become aware that this process is taking place?
	The details of what consultation should take place are not spelt out in Clause 7(2), which currently provides only that consultation and publicity should be as may be decided by the Secretary of State as,
	"appropriate in relation to the proposal".
	Clause 7(4) says:
	"The Secretary of State must consult such persons, and such descriptions of persons, as may be prescribed".
	That sounds a little feeble and needs fleshing out in the Bill. Clause 7(5) says that "appropriate steps" must be taken to publicise the proposal, if the proposed policy,
	"identifies one or more locations as suitable (or potentially suitable) for a specified description of development".
	Presumably, those are steps that are effective in publicising a proposal in the area concerned, but the Bill does not say that.
	Before I start talking about the amendments, I must say that they may not be exhaustive. I hope that they will provoke debate and will be seen as a constructive attempt to improve this clause by fleshing out the requirements.
	Amendment No. 62 says:
	"The Secretary of State shall provide for early public participation, when all options are open"—
	that is, not yet decided—
	"and effective public participation can take place, within a transparent and fair framework".
	Amendments Nos. 63 and 64 leave out the existing subsections (4) and (5) and put in their place:
	"The consultation period shall not be less than 12 weeks ... The publicity arrangements shall include advertisement in one or more national newspapers and the ... Gazette, placing the proposal and relevant supporting material on the Secretary of State's website and giving notice to Parliament".
	Amendment No. 65 states:
	"If the national policy statement relates, in whole or part, to England, the Secretary of State shall consult Natural England, the Historic Buildings and Monuments Commission for England, the Environment Agency and the Local Government Association".
	The remainder of the amendment deals with who should be consulted in Scotland and in Wales. These consultees may not be the only ones required; there may be others. Currently, the Government intend that consultation with statutory agencies such as the Environment Agency should be a matter for secondary, not primary, legislation. We believe that statutory agencies should without question be consultees and should be specifically referred to in the Bill.
	Amendment No. 67 states:
	"The publicity provided for under subsection (5) shall include advertisement in a newspaper circulating in the locality, the display of one or more site notices at the location and placing copies of the proposal and relevant supporting material for inspection by the public at one or more places in or convenient to the location".
	Amendment No. 68 states:
	"If subsection (5) applies, any authority required to be consulted under section 8 shall also be consulted on the proposal ... If subsection (5) applies, the Secretary of State shall consult any parish or town council (if in England) or any community council (if in Wales) whose area includes the location or is within 10 miles of the location".
	I remind your Lordships that we are considering large infrastructure projects whose impact might be felt over a large radius; that is the reason for the words,
	"within 10 miles of the location".
	Amendment No. 69 deals with subsection (6), which states:
	"The Secretary of State must have regard to the responses to the consultation and publicity in deciding whether to proceed with the proposal".
	We wish to add the words, "with or without modifications". Amendment No. 70 would add to that:
	"The Secretary of State shall give reasons for designating a statement as a national policy statement, including his reasons for not following any representations made".
	We have tabled that amendment because there is no point in having a consultation process if objections are ignored without any reasons being given.
	Our final amendment in the group, Amendment No. 71 to Clause 8, is an attempt to simplify the meaning of "local authority". If that were taken to mean the "local planning authority", the question of which authority was relevant for any given development would be straightforward.
	I hope that the Minister will take these amendments away for consideration and/or come back to the House with improvements to Clauses 7 and 8. I beg to move.

Lord Colwyn: I wish to say a few words about my Amendment No. 65A. The question of health hazards from power line electromagnetic fields has been a subject of media attention for many years. The problem has been discussed in your Lordships' House on many occasions in the past 25 years, most recently during our consideration of the Housing and Regeneration Bill in July.
	The first major western study—by two American researchers, Nancy Wertheimer and Ed Leeper—was published in 1979 and linked electromagnetic fields from power lines and domestic wiring to an increase in childhood cancer. Since then, the evidence has become stronger and, following Swedish studies in 1993, which showed a consistent doubling of childhood leukaemia risk, the National Grid has been forced to defend itself, including against inquiries from the public and the press and even against threats of legal action.
	In 2005, a study by the Department of Health—the Draper report—found that children living from birth within 200 metres of high-voltage power lines had a 70 per cent increased risk of developing childhood leukaemia. The statistical association is clear, but more research is needed to find the biological mechanism that links electric and magnetic fields from power lines with childhood leukaemia.
	I assure the Committee that high-voltage overhead transmission lines will be the subject of a national policy statement. My amendment is similar to that tabled by Richard Benyon in the other place. It would place a requirement on the Secretary of State to consult on potential health risks arising from national planning policy during the drafting of national policy statements. There is concern that the proposed system will allow much less consultation and representation from members of the public, as the IPC will be given only six months from the initial meeting to take evidence and another three months to deliberate. The IPC can decide what subjects are relevant to the discussion at the evidence sessions and can explicitly exclude subjects that are deemed to be covered by a national policy statement, which could include health.
	I know that the Minister will probably repeat the comments that she made during our consideration of the Housing and Regeneration Bill. It is important for everyone that the matter is carefully looked at and that more research is carried out. It is particularly important for children who live in those regions.

Lord Judd: I shall speak to Amendment No. 74. I declare an interest as the honorary president of the Friends of the Lake District, which represents the CPRE in Cumbria. I am also a vice-president of the Council for National Parks. Those interests will apply to some of our further deliberations. I very much appreciated the courteous and full letters from my noble friend Lady Andrews in response to some of the anxieties that I have raised with her. I am sure that other noble Lords have shared that experience.
	I am glad that the Government have included the concept of consultation. When that is put in a Bill, all sorts of arguments can arise about who is included or excluded. It is terribly important to throw the net as widely as possible. That is not just a good principle in a democracy; it is also a way of winning, as far as possible, public identification with what is finally undertaken.
	Other specific organisations are charged with heavy responsibilities that have a real bearing on the Bill; among those, of course, are the national parks. In my experience, Ministers repeatedly have emphasised in glowing terms how important they believe the national parks to be and how much the tasks that their authorities undertake are respected by the Government.
	To provide a flavour of that kind of expression, I shall quote from a speech given by my right honourable friend Hilary Benn to the Association of National Park Authorities conference on 17 September. He was speaking as Secretary of State for Environment, Food and Rural Affairs. It was a splendid speech and I wrote to him to say so, because it absolutely captured what the national parks are all about and the role that they play. It was almost poetic at points and it was moving, because of his personal identification with the issue. When referring to the creation of the parks, he said:
	"It was through this people's charter that we conserved some of the most important and iconic landscapes in our country and enabled people to see and to enjoy them. And now you"—
	he was speaking to the authorities—
	"are the guardians of this charter. And the real reason I wanted to be here today was to say thank you—to all of you—for the hugely important work that you, and all those who've come before you, do. And because of what you do, today our National Parks are more important than ever. They cover 8% of England, and important parts of Scotland and Wales too. Over 90% of people"—
	I presume that he is referring to public opinion polls—
	"say that the Parks are important to them. 96% think that experiencing the Parks should form part of the education of every child in the UK. I agree".
	Perhaps I may quote once more from that speech:
	"Home to some 200,000 people, including 12,000 farmers—vibrant communities, thriving businesses. And we must ensure that the homes and local services are there to meet people's needs. That's why we are committed to delivering over 10,000 affordable homes in communities of less than 3,000 inhabitants before 2011. We spent this morning at Hawkshead discussing how that could be done in one particular village. Far from being a barrier to development, National Park status can bring a significant boost to the local economy, attracting new visitors, businesses and investment. We must continue to work together to realise that potential".
	I need not say more. Here is the strength of feeling of a Secretary of State and Government about the role of the organisations that are charged with planning responsibilities. In those circumstances, I believe that it must simply be a drafting oversight that national parks are not included in this clause where my amendments suggest they should be. Having said that, I am certain that, in the light of her right honourable friend's commitment, my noble friend will feel able to go away and look at this principle and come back with some kind of positive response.

Lord Jenkin of Roding: I have two amendments in this group but before I come to them perhaps I may say to my noble friend Lord Colwyn that in Grand Committee on the Energy Bill we had a very good debate in the Moses Room on the exact problem that he has raised tonight of the apparent impact of electromagnetic radiation from power lines and the strange association with childhood leukaemia. However, as he rightly said, the problem at present is that there appears to be no scientific evidence of causation. We are waiting for a government report on this, which perhaps the noble Lord, Lord Hunt of Kings Heath, could comment on. I do not intend to return to this matter at the Report stage of the Energy Bill—although of course other people may do so—because there is no point until we have the response to the report setting out the Government's evidence on it. Nevertheless, it is a strange phenomenon.
	I turn to the two amendments to which I have put my name. Amendment No. 66 is simply about ensuring that disabled people are able to access any consultation. As I have mentioned before, for 10 years I was on the council of the Guide Dogs for the Blind Association. There is a constant complaint from people who suffer from a sight disability that they are not taken into account on these matters and that they have the greatest difficulty in accessing the information that is necessary for them to have an input. The GDA has drawn my attention to a number of focus groups on the issue of consultations and it has given me some rather poignant quotations from people who were consulted. One blind person said:
	"Everything was 'we are doing this, we are going to do that'. We argued against it—but they took no notice".
	Another said:
	"I went to one meeting and they didn't listen to us—they just didn't listen. It is always statistics and more statistics".
	We can all express some sympathy with that. One guide dog owner said:
	"It knocks your confidence when you go to meetings and get ignored",
	and so on. Therefore, it seems to me that in this day and age there is a clear duty on any public authority engaging in consultation to ensure that the form that the consultation takes is accessible, and can be responded to, by people who suffer from, in this case, a sensory disability, although that applies to some extent to other disabled people as well.
	Amendment No. 84 is addressed to a somewhat different and rather wider point. It would insert a new clause concerning access for disabled people. We have discussed sustainability and Clause 9 requires the Secretary of State to promote sustainable development in drawing up planning policy statements. The organisations representing disabled people ask whether there should not be the same obligation relating to access for disabled people. The new clause is therefore designed to promote that. However, clearly, if there is to be a major infrastructure development where public access is required, it is much better that that should be firmly built in at the beginning rather than be an add-on later, which is always less satisfactory and more expensive.
	Therefore, I think that those organisations are asking the Secretary of State to draw up the national policy statement with the objective of contributing to the achievement of an environment accessible to disabled people. I do not think that that is asking a great deal but it would make a considerable difference to the responses that may come forward and, I suspect, to those who will promote projects under the aegis of a national policy statement. It should be as much a core issue as sustainability or design. We have debated both of those issues and this gives us an opportunity to make the same point in relation to disabled people. I hope that the Minister will be able to give a favourable response.

Lord Cameron of Dillington: My Amendment No. 72 would merely place in the Bill the requirement for a local consultee, which in my view it would be inconceivable to leave out of any genuine consultation process. I suspect that the omission of parish councils stems from the usual city-based, departmental process, where the parish councils often do not mean a lot to the people involved—an absence of rural proofing, one might say. If you live in a rural village or market town, the views and decisions of the parish council mean a lot to you. Local newspapers will often report their decisions and debates in much more detail than those of the district or county council, which are of course more remote. Indeed, many parish council decisions probably affect local people's lives more than these rather more remote councils.
	I am sure that the Government will look in favour on this amendment because in recent years and months they have deserved credit for enhancing the role of parish councils by aiding their training and opportunities, assisting with parish plans, encouraging quality parishes and easing the passage of the Sustainable Communities Act, and indeed through the Communities in Control: Real People, Real Power White Paper, published earlier this summer. Therefore, it seems inconceivable that they could do all that for parishes and then commit the sin of omission by ostensibly excluding parish councils from a consultation process on something that could dramatically affect their lives.
	It is probably not immediately obvious to those who live in close-knit metropolitan areas that it is quite likely that an outlying parish in an urban-centric district council, such as mine in south Somerset, will take a different view from that of its district council. Sometimes, particularly on planning decisions, the district council takes a totally divergent view from the parish involved. Thus the parish council must be allowed to have its own say in the process. Even surrounding parishes should be included because Clause 8(3) already refers to contiguous parishes in this instance.
	Even, as is quite likely, if a parish takes a rather dim view of these bad neighbour developments and in the national interest has to be overruled, it is important to recognise that it will inevitably have a far better idea of which local mitigation measures will work effectively to reduce the damage to local people's lives. Parish council views may be very different from those of the district or county council official who is often based in a town 20 or 30 miles away.
	I hope that it will please the Minister, who wants to speed everything up, that in speaking to Amendment No. 72, I shall also speak to Amendment No. 189. Amendment No. 72 refers to national policy statements that are site specific, so the parish is involved. Amendment No. 189, which is in a later grouping, refers to the developer's pre-application procedure, but it is obviously very important that any applicant consults with parish councils and gives them an opportunity to submit their views. Amendment No. 292, which is in yet another grouping, governs in various places the procedures of the IPC. Clause 99 governs in various places, such as in Clauses 58(2)(a) and 54(2)(b). My remarks will refer to those three amendments.
	I hope that the amendments merely correct an oversight by the Bill team and that the Government will see their way to accepting them. It is inconceivable that the views of the parish council would not be sought by Parliament when discussing a site-specific NPS or by the developer and the IPC. It is extraordinary that the Government who are so keen on parish councils should not put that in the Bill. I hope that they will accept that simple amendment.

Lord Greaves: This is an important group of amendments about consultation and publicity arrangements on national policy statements. A little amendment, Amendment No. 73, which is in my name and that of my noble friend, is tucked away in this group. We have also added our names to Amendments Nos. 66 and 84, which were tabled by the noble Lord, Lord Jenkin of Roding, on the ability of disabled people to take part in the consultations and developments. I shall say no more about those because the noble Lord introduced them in an excellent way and we agree with everything that he said.
	I also added my name to Amendment No. 74, tabled by the noble Lord, Lord Judd, on national parks. I was asked to do so at a time when we thought we might reach this amendment on Monday last week. The noble Lord obviously shared the Minister's optimism about the progress of this Committee. But I shall say something about it shortly.
	I want to give the support of the Liberal Democrats to the general collection of amendments tabled by the Conservatives and spoken to by the noble Earl, Lord Cathcart. The only reason we did not table similar amendments is because they pre-empted us and there was no need to duplicate them. There is a view, which we hold, that the Bill is too general and too vague on how public consultation and publicity on national policy statements will work.
	I shall repeat what the noble Earl quoted from the Bill because it is crucial. Clause 7(2) says that such consultation and publicity will be carried out,
	"as the Secretary of State thinks appropriate".
	That is not good enough for something as important as this. Perhaps the general principle should be set down as Amendment No. 62 proposes, or perhaps the bare minimum of what the Secretary of State has to do to publicise and consult should be set down. We would also like an explanation of what consultation means because it is not very clear. Clause 7(4) states:
	"The Secretary of State must consult such persons ... as may be prescribed".
	I have hunted through the Bill and cannot find who will prescribe and what the process will be. Perhaps I have just not found it in this long Bill, but consultation is a two-way process. There is the question of who has a right to be told automatically and directly, which is the outgoing part of consultation, and there is the incoming part of consultation. If only prescribed persons are consulted, does that mean that anyone who happens to be interested because he will be affected can be ignored because he is not a prescribed person? That is crucial. I am assuming that if someone living next door to me sends some comments on a development in which he is interested, at the very least his letter will be read by somebody. Will that be the case if he is not a prescribed person?
	The other question is whether the representations that are made will be published by the Government. Organisations such as Friends of the Earth or those wanting to build nuclear power stations will make representations and it will not matter whether the Government publish what they say as they will publish it themselves so that interested people can find out. But my neighbour may not have that facility or know how to do that, so will the Government publish the representations that they receive?
	That leads to the question raised by the noble Lord, Lord Dixon-Smith. Will the Government have to give reasons for the decisions they are making and, by implication, reasons for rejecting some of the representations that are made to them? Clearly on issues such as building nuclear power stations, new motorways, or whatever, some of the representations will be rejected as they will get different views in large quantities.
	These are questions on the principles of Clause 62 referring to consultation that is,
	"within a transparent and fair framework".
	Those are important words. Will it be a transparent framework in which organisations or individuals can take part, or will it be a restricted consultation with people whom the Government think have some rights because of their status as campaigning organisations, representatives of developers, or whatever?
	Amendment No. 62 may or may not be the right one to put into legislation but the principles are fundamental. Amendment No. 64 refers to the consultation period. Twelve weeks may or may not be right but we need to know how the consultation will work. It is crucial to have some indication in the Bill of minimum arrangements. Amendment No. 65 lists a number of quangos and other organisations that ought to be consulted. I have some doubts about whether that is the right approach simply because if the names of such organisations are to be included, it should be made clear that they are a minimum. It may be that in other areas the list of organisations that the Government has to consult is set out in regulations rather than in primary legislation, and that may be the way forward here. It helps everybody concerned to know whom the Government have to consult. It seems extraordinary that this legislation does not specify that the Scottish Executive and the Welsh Assembly are statutory consultees. I assume that that is the case in view of the amendment tabled by the noble Lord, Lord Dixon-Smith. They clearly ought to be.
	Amendment No. 67 is interesting because it requires adequate local publicity when there are site-specific issues or issues that are likely to affect a particular area or type of area. One assumes that that will take place, but the Bill does not say do.
	Amendment No. 72 was tabled by the noble Lord, Lord Cameron, to include parish councils and community councils in Wales. Amendment No. 68 is a different version tabled by the noble Lord, Lord Dixon-Smith. Parish councils have got to be included. The Government may say that these are national level policy statements and parish councils have nothing to do with them. In many cases, that may be the case. Most parish councils will not be interested in most national policy statements. However, particularly when they are site specific or are likely to have site-specific implications, it is vital that parish councils are involved. Parish councils have a right to be consulted on all planning applications. The later amendment tabled by the noble Lord, Lord Cameron, refers to applications to the Infrastructure Planning Commission. If parish councils were not included in that, it would be a reduction of their present rights. At the moment, no matter what the application is, whether it is for the extension of a kitchen or for a nuclear power station, the parish council is consulted by the local planning authority as of right. It is important that that right should remain. It should apply to community councils in Wales, which are simply parish councils by another name in a different country.
	My noble friend Lady Hamwee and I tabled Amendment No. 73. It includes community councils in Scotland. They are rather different bodies. They are not set up on the same statutory basis as parish and community councils in England and Wales, but the principle remains that they should be consulted.
	Amendment No. 74 was tabled by the noble Lord, Lord Judd. It refers to national park authorities. Nobody can wax more lyrical than the noble Lord about the benefit and glory of national parks. I am not going to try to match him, but I want to underline that national parks are planning authorities in their own right. All other planning authorities in their own right—all those that I can think of anyhow—are listed in the Bill. National parks are not, despite the fact that they are planning authorities and determine planning applications, just as if they were a district council or a London borough council. I think it is probably an oversight that they are not in the Bill. Like the noble Lord, Lord Judd, I would like an assurance from the Minister that that is the case. It would be quite wrong to omit them from this consultation.

Lord Judd: I shall take the opportunity of the noble Lord's important remarks to make another point that naturally follows from them. If legislation gives national parks this special planning responsibility, and people volunteer their services to do a serious job of work on that responsibility, and great care is taken in their selection so far as national representatives are concerned, is it not a slap in the face that they are not explicitly to be one of the bodies to be consulted in this process?

Lord Greaves: I agree. It seems to be an oversight, and we hope that the Government will put it right.

Lord Williamson of Horton: I support this general collection of amendments, as the noble Lord, Lord Greaves described it. The motivation is similar in almost all of them. In the Bill, we are engaged in a process of accelerating and improving the planning procedures for massive projects that will affect an enormous number of people. I am in favour of that. However, when the public fully comprehend what we are doing, they will ask two questions: who is going to be consulted and by what means will people discover what is proposed? Those are the points that will come to the top of the pile when people begin to discover what is happening. I support these amendments about the process of consultation and the publicity for it.
	I specifically support Amendment No. 74, which was tabled by the noble Lords, Lord Judd and Lord Greaves. As they say on television, it is location, location, location that matters. Even if a project is excellent, if it is proposed to be in a national park, it is obvious that the national park, as the planning authority and the guardian of that part of our countryside, needs to be properly consulted. I hope that the Minister will be in a benevolent mood, as she often is, in relation to Amendment No. 74 in particular, but if she wants to favour all the others as well, I will be happy.

Lord Reay: I support Amendment No. 72, which is tabled in the name of the noble Lord, Lord Cameron. I do not think that parish councils should be squeezed out of the consultation process. They easily could be, and a formal reminder that they have a right to be consulted would be a very good thing.
	I also support Amendment No. 74, tabled by the noble Lords, Lord Judd and Lord Greaves. The Bill does not recognise that protection of the landscape should be a factor in decisions about where nationally significant infrastructure projects are sited and what sort of projects should be sited in what sort of areas. I hope that, following the debates we had last week, at the next stage there will be a reference in the Bill to landscape. This amendment would reinforce that message.
	In many cases, there are plans to extend national parks, which can be pre-empted by developments that take place beyond the current frontier of the national park. That is another reason why the views of national park authorities should be sought. A national park authority is a local authority for the purposes of the Bill and it should be treated as such.

Viscount Colville of Culross: I want to add a few questions to those raised by the noble Lord, Lord Greaves, about consultation. This matter has puzzled me since I started to read the Bill, and it has puzzled me all afternoon. As my noble friend Lord Cameron said, it is clear that when an application is being considered for a particular project, Chapter 2 of Part 5 provides for another set of consultations. They will be specific to the project concerned. At this stage, we are talking about the national scene, and I see that Clause 7(5) deals with policy statements where there is a specific description or site for the proposal. This applies to nuclear power stations and airports, but not to the rest. I should be grateful if the Minister would explain what the subject matter of the consultation will be in these other cases.
	The noble Lord, Lord Turnbull, gave us an example earlier of the railway line to connect London to the Channel Tunnel. A number of routes were put forward; in the end, none of them was chosen; so it came in the form of a parliamentary Bill. I have heard it said that there may be a new railway line from London to the north. If so, it would clearly go in some sort of a corridor, because that is the way that these things are done. The prospect of consultation on a corridor going from London to the border and beyond is something that concerns me considerably. What are the people consulted to be asked about? Will there be alternative routes? Will it be possible for consultees to put forward alternative routes? How is this to work?
	Of course there must be consultation, but it will be very difficult for consultees to know what they are supposed to say if they do not know what the project consists of. At the moment, except for the two cases that I mentioned, I see no indication set out in the Bill of the subject matter for the consultation. If the noble Baroness could enlighten me on that, I would find it a great deal easier to understand what we are all talking about.

Lord Chorley: I shall speak principally to Amendment No. 74 to Amendment No. 65. I shall start with Amendment No. 74 in the names of the noble Lords, Lord Judd and Lord Greaves, regarding national parks, which has been referred to by several speakers. I am delighted to support them on the amendment. The noble Lord, Lord Judd, is president of the Friends of the Lake District. I am merely one of his vice-presidents. As he said, he is a vice-president of the Council for National Parks. I am also a vice-president. I think that those are the only interests that I have to declare.
	The point has been made—so I will not elaborate on it—that national parks are planning authorities in their own right and that therefore it should be axiomatic that they should be consultees on the same basis as the various local planning authorities listed under Clause 8. I should like to think that this is a question of, "Homer nodded". Nevertheless, it is a curious fact that the Council of the Scilly Isles is a consultee but none of the eight or nine English national parks is a consultee.
	It is possible that most of the proposals that will be directly relevant to national parks will have to do with wind farms. There may be road, railway or electricity grid schemes, and so on, but I suspect that wind farms will be one of the most contentious areas. I suspect that the issues will be not so much about wind farms proper but about wind farms adjacent to national parks. Therefore, it is rather important that, when we bring national parks in as consultees, the area of consultation should be wider than the specific boundary of the national park. Clause 8 (2) states:
	"A local authority is within this subsection if any of the locations concerned is in the authority's area".
	What is adjacent to the area is also important.
	Turning to Amendment No. 65, although my main concern has been to include national parks in the Clause 8 consultation process, it is equally important to say, although the noble Lord, Lord Greaves, did not emphasise it, that the other relevant agencies listed in that amendment should also be included in Clause 7. I assume, incidentally, that in including Natural England, the other important landscape categories of areas of outstanding national beauty and SSSIs would be covered in the consultation process. That is important. Time goes on and I will close on that note.

Lord Bridges: I shall speak briefly on a similar point arising from Amendment No. 62, which states:
	"The Secretary of State shall provide for early public participation",
	on important matters concerning environmental questions. I shall refer to something that went wrong—it is not, I think, the fault of the current department involved in environmental matters, but it is an object lesson in how not to do it.
	Soon after I retired, when I was doing some voluntary work for the National Trust, I was invited to take part in a serious discussion about the future of Stonehenge and, in particular, of the road works surrounding it. I went to one of the first conferences held in the new conference centre just over the road. It was a very serious conference addressed by experts on all aspects involved and we produced a very thorough report that was unanimously accepted by the Government of the day—although clearly public finance for some of the work that we proposed was difficult. The key to that was the future of the A303—a principal highway of the south-west that runs along the site and, in effect, poisons the whole of it. The suggestion made in our report was that serious consideration should be given to undergrounding the A303 so that it would not run on the surface at all. That was accepted in principle by the Government, although whether and when it would be built was not decided.
	Three months ago, I received a postcard from the department concerned—I suppose that it was Defra—informing me: "No. Can't do that. No money available". If a public consultation of that kind takes place engaging a major department of state and the report is in principle accepted, it should not be thrown on the rubbish heap. Those of us who took part in those voluntary activities will not take part if such things go on.

Lord Burnett: I will not keep the Committee too long, but I ally myself with the points made by the noble Lord, Lord Chorley: national parks should be consulted not only in respect of developments within them but of those developments in the vicinity of the national park, where the development will have some impact on it. I declare an interest: I am involved with Dartmoor National Park. I hope that the Minister can give us some comfort on these matters this evening.

Baroness Andrews: Noble Lords will forgive me if I feel a schizophrenic because, on the one hand, I am told that I am rather benign and, on the other, I am represented as a tyrant who just wants to bash through the Bill as fast as possible. When we come to consultation, this Committee is extremely alive to all the implications. That is why we have had such a good debate.
	I hope that noble Lords will forgive me if I go fairly swiftly through the amendments, because they cluster around several consistent issues about how serious we are about consultation: how open it will be, will the right people be consulted, will they be properly listened to and will they know that they have been listened to? Those are all the right questions.
	I have said many times during the course of our three days of debate so far that, because the national policy statements are unique, because they set out to do things differently, they must do consultation differently as well. It must be a serious process. The noble Lord, Lord Bridges, has just given a fine example where consultation sounds to have been rather token. We are not in the business of having just token consultation on the national policy statements. This will be a national debate about infrastructure that will serve the purposes of our communities for many years to come, and it must be seen to be real. Strengthening public participation is important at all three key stages of the process. I am grateful to the noble Lord, Lord Cameron, for his additional amendments to this list.
	Because consultation has been thorough, noble Lords will expect me to explain why we have given such prominence to the code of practice in the Bill. I reassure them that the consultation on national policy statements will reflect the full seriousness of this. It was striking in our meeting with all the promoters and the CBI that everyone spoke about the necessary evidence that public involvement had been tangible and demonstrated the ownership of change. Local communities were critical to that. They made their voices heard and felt that they had been listened to.
	A considerable number of amendments have been tabled. Amendment No. 62 would require the Secretary of State to carry out consultation on national policy statements at an early stage, when options remain open. That is precisely what we want to do. The amendment appears to be intended to implement the UK's obligations on consultation under the Aarhus convention on public participation in decision-making. The noble Lord, Lord Greaves, called for open and thorough participation and, as he knows, the convention governs access to information, public participation, and access to justice in environmental matters. It is based on the principle that sustainable development can be achieved only through the involvement of all stakeholders. The rights that it grants include the opportunity to have an "early and effective opportunity" to comment on the environmental effects of proposals. We have ratified this convention and must therefore ensure that our domestic legislation is compatible with it. We are content that the procedures set out in the Bill, and those to be established by secondary legislation under the Bill, are compatible with this very important convention.
	Let me reassure noble Lords that at all three stages—at the formative, development stage of the draft NPS; at the pre-application stage when people in the local community make their views felt about how they will be affected; and during the IPC's examination when the site and the implications are discussed in detail—the public voice will be fully heard and the public fully involved. Those basic principles accord with the principles that apply to the conduct of consultations. Under domestic law, they are already written into the Bill and will be followed in the processes that are set out.
	Amendment No. 64 would impose a minimum period of 12 weeks and minimum publicity requirements that proposals for national policy statements should be publicised in one or more national newspapers, in the London Gazette, on the Secretary of State's website and by giving notice to Parliament. We share that interest, but we do not think that it would be appropriate to set out in the Bill detailed procedures and processes for national policy statement consultations. Let me explain why, because much of our debate this evening has focused on this. Very detailed requirements in the Bill would tie the hands of those who are conducting and participating in consultations. I know of no Act that has gone through this Parliament that has set out forms of consultation in detail, for the very reasons that consultation is local and each NPS will be different. We want to give the Secretary of State in each case the opportunity to consider how best to achieve the detailed consultation required by the Bill. I have given an assurance that that consultation will accord with the code of practice, which has been updated.
	The code of practice on consultation does not set out deliberate methods, but it does require positive and proactive consultation. Government consultations often centre on written consultation over 12 weeks. That has been the standard. The code of practice encourages departments to consider the most appropriate means to gather views, but those means change constantly. Departments are increasingly using additional innovative means such as web-based consultation, discussion forums, facilitated meetings around the country, road shows, citizens' juries and market research. We are doing things very differently, and we want the most fertile and the loudest public debate possible on national policy statements.
	National policy statements will vary significantly, reflecting the differences between different types of infrastructure. We cannot set out a one-size-fits-all approach. Consultation also needs to be proportionate and flexible so that the Secretary of State may decide what consultation and publicity is appropriate for a particular national policy statement. However, given that we all agree that these NPSs will be the key statements of the criteria that govern where infrastructure might be located, we are acutely aware that the process for enabling local voices to be heard at the national stage as well as the local stage is critical.
	The noble Viscount, Lord Colville, talked about national policy statements that are not as location-specific as those on airports and nuclear power stations. Clause 5 describes the criteria that will be identified in the NPSs. In the consultation on the planned NPS on wind power, for example, people will come forward with views, experiences, information, evidence, and reactions to the criteria. Those judgments may in some cases refer to local experience, but there will be an active debate on the purpose of wind power, on the capacity that we need from it, and on all aspects of what we can gain from investment in it. I do not think for a moment that location-specific NPSs will be any more vigorously debated than the others will be.
	On Amendment No. 63, Clause 7 sets out that the provisions for consultation and publicity are subject to subsections (4) and (5), which allow for statutory consultees to be specified and require local publicity where an NPS is location-specific. The amendment would make the consultation and publicity provisions subject to the entire clause except subsection (6). This would in effect extend it to subsection (1), which simply describes what the clause does, and to subsection (3), which defines what a proposal is. The amendment would therefore have no practical effect.
	I turn now to Amendment No. 65 and a whole range of issues relating to national statutory consultees. The noble Lord, Lord Chorley, made a very powerful contribution on this. The amendment would add to the Bill a requirement to consult Natural England, the Historic Buildings and Monuments Commission for England, the Environment Agency and the Local Government Association, as well as equivalent organisations in Wales and Scotland where relevant. Again, we have tried to put into the Bill the capacity to list people to be prescribed without fixing the list in primary legislation, which is always too rigid to be useful.
	Subsection (4) gives the Secretary of State the ability to make regulations prescribing a list of persons and descriptions of persons who must be consulted. We will consider who should be specified as statutory consultees, and will specify them in regulations in due course, but we have already confirmed that we intend to include Ministers in Scotland, Wales and Northern Ireland in the case of national policy statements that extend to these respective areas. I reassure noble Lords that we will also take account of views that we have received in response to the consultation on the planning White Paper. We will, of course, also take account of the views of Members of this House that have been expressed this evening.
	Again, there is no fixed list of people in the Bill because the bodies which it will be appropriate to consult will vary from national policy statement to national policy statement. Some will be common to all—we can imagine those; others will be relevant to particular types of infrastructure. We need to retain the flexibility to make the right choice. The clause permits the Secretary of State to designate statutory consultees by order and when necessary. As I think I have said previously, we intend major statutory environmental and heritage bodies to be represented.
	Amendments Nos. 67 and 68 seek to specify more closely how consultation with a local community would work when a national policy statement refers to geographically specific parts of the country through requiring local advertising and site notices, and consultation with local authorities, including parish councils or community councils if in Wales.
	Amendments Nos. 71 to 74 seek to change the list of authorities. I quite understand why Members of the Committee are making the case that they are. I am very grateful to my noble friend Lord Judd for his generous words and for the extraordinary role he plays in promoting the interests of our national parks. He is one of our greatest guardians. I wish to reassure the Committee that, in considering the most effective and the best way forward, we have been guided by the need fully to involve local authorities as the elected bodies and the most expert bodies in consulting their communities; for example, through developing statements of community involvement.
	Local authorities have unique knowledge and expertise in this field, which is why they have been placed in the situation that they have. The Bill recognises the important role of local authorities in understanding the nature and circumstances of the communities they represent, and therefore in advising the Secretary of State on how to consult them effectively. Departments will listen to their advice and make sure that the most appropriate methods are followed. In relation to what the noble Lord, Lord Cameron, said, this is not a metro-centric response. We believe that this is the most sound and realistic route to ensuring that local communities are consulted. But I say to all the Members of the Committee, including the noble Lords, Lord Reay and Lord Cameron, who made powerful arguments for parish councils and national park authorities, that the local authority can recommend that these bodies are consulted if it feels that that is appropriate. They are not being left out, but we are giving the prime consideration to the local authority as an elected body, which knows how to do those things most effectively.
	It is also important that this role is not restricted to local planning authorities, as per Amendment No. 71. In a two-tier authority, the upper tier will be able to give important direction as to how the local area should be consulted, in particular since it will, by its nature, have a more strategic overview of the area in question.
	Amendment No. 69 would require the Secretary of State to have regard to the responses to consultation and publicity in deciding whether to proceed with a proposal "with or without modifications". I do not think that that adds anything to the Bill. Clause 7(6) already requires the Secretary of State to have regard to responses to consultation in deciding whether to proceed with the proposal. Any definition would include deciding whether to proceed with the NPS, with or without modifications.
	The noble Lord, Lord Jenkin, spoke very powerfully on provisions for publicity suitable for people with disabilities. His Amendments Nos. 66 and 84 would require that specific provision was made for people with disabilities where a national policy statement was local-specific and insert a new clause requiring the Secretary of State to draw up NPSs with the objective of contributing to the achievement of an environment accessible to disabled people. He knows that we completely support that ambition. It is vital that all parts of the public and the community should be able to participate and make their voices heard as to how an NPS would affect them, bringing their own experience, intelligence and foresight to the debate.
	The particular requirements of people with disabilities are addressed through the provisions in disability discrimination legislation. The development of national policy statements would be subject to this legislation, so it is not necessary to put the detailed provisions in the Bill. But let me reassure Members of the Committee that where it is necessary to publicise the proposals in a national policy statement locally, for all the reasons I have said—not least, involving the local authorities—we are determined that this should be as thorough and effective as possible, and we will consider how we meet the needs of people with disabilities to make sure that they have full access and full ability to respond.
	Amendment No. 70 would require the Secretary of State to give reasons for designating a national policy statement, including reasons for not following representations made. Clause 5(6) says that a national policy statement must give reasons for the policy set out in the statement. It is normal practice, as set out in the code of practice on consultation, for the Government to respond to consultation by summarising the responses received and explaining how they have influenced the proposals. I think that this will meet the purpose of the amendment.
	On Amendment No. 65A in the name of the noble Lord, Lord Colwyn, I am afraid that I cannot add anything to what I said in the Housing and Regeneration Bill. I made a very full statement about the consultation we have had with the Health Protection Agency, the referral to SAGE and so on. Ministers have always said that they are currently considering the need for practical precautionary measures for the reasons, which he knows well, to reduce exposure to ELF EMF. We expect to set out our response to SAGE later this year. As soon as we do, I will make sure that the noble Lord is informed, certainly as regards the interests of the people on whose behalf he has been speaking this evening.
	I am sorry to have spoken for so long. There was a long list of amendments. I may not have done justice to them all, but I hope that I have done sufficient to enable the noble Lord to withdraw his amendment.

Lord Judd: I thank my noble friend for her generous remarks. Her very full response is characteristic of her commitment to taking us all on board. While the argument about democratically elected bodies being in the Bill is strong—a part of me of course responds to that—we do have a problem. The Government give specific responsibility to the park authorities to have the powers of planning for the area for which they are responsible. It may be that local authorities in the area of the national parks do not see things quite in the same way as the people who have been given the authority for doing the planning in that area. There is a gap. How does one get a full, thorough and proper consultation if the people who have been given the responsibility are not enabled, as of right, to put their arguments before those who are drawing up the national plans?

Baroness Andrews: I hear what my noble friend says. As I say, it will be open to the local authority certainly to consult the national park. But he makes a powerful case.

Lord Greaves: I am always astonished at the noble Baroness's ability to find good reasons for opposing what I think are unassailable arguments, and for doing so in great detail and with great commitment. But I do not think that she has given any good arguments as to why national parks should not be in this list. Her main argument is that they are not elected authorities, which raises the issue of parishes. When we talked about parishes on, I think, the Local Government Bill, the Government revealed that they did not have a list or database of all the parishes in the country, which could cause a problem. Would it be possible to use the planning authorities, the development control authorities, as an intermediary for consulting parishes on these matters? In a formal way, the development control authorities consult parishes on planning applications probably weekly. They certainly do so in the ones that I know. They are all consulted on every planning application. They know them and how to do it. It would be possible to use the planning authorities, the district councils, the borough councils, et cetera to consult their parishes. Perhaps the Minister would go away and think about that and make it formal in some way.

Baroness Andrews: I am always happy to think about the highly innovative solutions that the noble Lord has to most problems. I shall certainly read Hansard carefully tomorrow.

Lord Brooke of Sutton Mandeville: I shall be extremely brief. I did not speak on any of the amendments earlier, but, in a funny way, the Bill was a consultation on the process that we are going through. The Minister said that district councils have the ability to consult parish councils. Sutton Mandeville parish council is extremely active. When we were visited by a lady from the county council, after we had had the debate on the unitary authority in this House in which the noble Baroness and I took part, it was clear that no one on the parish council and no one attending the parish meeting on that occasion had been given any briefing at all either by the county council or by the parish council on the implications. It so happened that our particular district council was quite different in its make-up and behaviour from any of the other councils, so we were joining a body that was in fact quite different from us. No one in the parish had any idea of that happening until it was a done deed.

Lord Burnett: I want to say one more word about national parks. I chaired the Dartmoor National Park public consultation for the emerging local plan. It was done extremely well by the officials and members of the national park. It was a conscientious consultation that took place in the park itself and, in my view, was an exemplary public exercise.

Earl Cathcart: I shall be brief. When I introduced this group of amendments I said that I hoped it would provoke discussion, and I believe it has. We have had a good debate and generally there has been support from all sides of the Committee, and certainly Members want to know more about how the consultation will work and how the publicity surrounding it will be handled. The Minister has given a very full response, but I have to say that I found it to be rather like a curate's egg, good in parts but with other bits that were not so good. It was so full that the best thing at this point is to read it and see where we go from there. At this stage, however, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 63 to 70 not moved.]
	Clause 7 agreed to.
	Clause 8 [Consultation on publicity requirements]:
	[Amendments Nos. 71 to 74 not moved.]
	Clause 8 agreed to.
	Clause 9 [Parliamentary requirements]:

Lord Dixon-Smith: moved Amendment No. 75:
	Clause 9, page 5, line 11, at end insert "for the approval of both Houses"

Lord Dixon-Smith: I have Amendments Nos. 75 and 77 in this group, but Amendment No. 77 will have no relevance unless Amendment No. 75 is passed. It would remove some unnecessary subsections if Amendment No. 75 were agreed. I have said time and again in discussing this Bill that the big decisions are political decisions, and that they must be taken by politicians. We are dealing with the question of how national policy statements are finally approved. If we go down the route of the Bill, which suggests that this should be done by the Secretary of State, we shall run straight into the courts, and there are plenty of people lining up to do just that. However, if we bring the final decision to Parliament itself, that possibly fatal flaw is removed. It is fatal because it will introduce a system of delay which we can do nothing about. We can do many things with the time we give ourselves here in Parliament to discuss items of business and come to a conclusion, but we cannot limit in any way the time that the courts might choose to take. As other Members of the Committee have acknowledged elsewhere, we need to recognise that these amendments are in the interests of trying to speed up the process.
	My noble friend Lord Jenkin of Roding has Amendment No. 78 in this group which sets out the process in greater detail and with more care than we have put into drafting ours. Our amendment is designed to open the subject, but I would go so far as to suggest that my noble friend has provided the solution. However, that is for him to explain in a few moments. I beg to move.

Lord Jenkin of Roding: I am grateful to my noble friend for his trailer, if I may so describe it, because I think that the amendment I have tabled in this group is one of the most important that we shall discuss during the Committee stage of this Bill. Those who attended the Second Reading debate will recall that I made the point at col. 1178 that the whole process should have the "credibility and authority" of an affirmative vote in both Houses. The noble Lord, Lord Oxburgh—I am sorry that he is not able to be in his place this evening—in his Second Reading speech used what I thought was a telling phrase when he referred to the "moral legitimacy" that national policy statements would otherwise lack. Indeed, he went on to say:
	"It would make them much more difficult to challenge by special interest groups, and even those who oppose the plan would know that it was not simply a bureaucratic diktat, but had been examined and approved by Parliament".—[Official Report, 15/7/08; col. 1214.]
	That is what this amendment is mainly all about. The noble Lord, Lord Mogg, with whom I was discussing the matter earlier today, gave his warm support to this proposition, as did a number of other noble Lords, while the noble Lord, Lord Turnbull, when we were discussing the Infrastructure Planning Commission on the first day in Committee, said:
	"If one wants to close an apparent democratic deficit one should look to the way in which the NPS is handled in Parliament, rather than turning the IPC into an advisory body".—[Official Report, 6/10/08; col. 20.]
	Amendment No. 78 seeks to enshrine this in the Bill. It requires affirmative votes in Parliament instead of it just having a consultative role, and it should involve both Houses. The same points are made in Amendments Nos. 82 and 83, which no doubt noble Lords will wish to speak to. Amendment No. 78 goes on to provide that if there is no approval, formal recommendations could be made by what I suggest should be a Joint Committee. Here I make one point: the actual details of parliamentary committees are really not for Parliament itself but for discussion through the usual channels. I quite understand that—the same problem arose, as the noble Lord, Lord Turnbull, will recall, on the statistics Bill. If no formal recommendations are made, the Government may table revised proposals unless both Houses reject the recommendations. That is the shape I am suggesting we might establish in this Bill.
	Parliamentary procedures and conventions have developed over the centuries and there is a whole range of ways in which Parliament can be asked to handle government proposals. Clearly the main means of doing this is for the Government to produce a Bill which goes through its stages in both Houses, is amendable at almost all stages and then becomes law with Royal Assent. That is not an appropriate procedure for a national planning statement. At the opposite end there are statutory provisions which simply require the Government to lay a proposal before Parliament with no subsequent procedure laid down. That might be appropriate for a report with recommendations but, again, it would be wholly inappropriate in this case. In between the extremes of legislation on the one hand and merely tabling a proposal on the other is a range of statutory instruments—negative, affirmative and so-called super-affirmative procedures. These become law. Yes, they are debated and, if necessary, can be voted on in both Houses, but there are no amendments and we have become accustomed, in almost every case, to having them confined to one-off, short debates lasting little more than an hour.
	A quite different approach involves Select Committees. There you can have wide inquiries, sometimes on proposals put up by the Government's pre-legislative committees. I was privileged to serve on such a committee on the human fertilisation and, as it was then, the human tissues draft Bills. These are wide inquiries which can hear evidence and make reports containing recommendations, but they do not become part of the law and are not binding on Governments or anyone else. The only obligation is that a Minister is required to give a reply.
	Those are the existing procedures—I hope I have covered the main ones—but what do the Government propose here? They propose the publication of the statement, the consultation of Parliament, the entitlement of Parliament to propose amendments and, in the House of Commons only, under Clause 9 there are certain parliamentary requirements. It envisages a resolution of either House or, again, a committee of the House of Commons which can make recommendations. But, rather like the Select Committee reports, the only duty on the Government is to respond. The proposal in the Bill is that the establishing of a national policy statement remains entirely with the Secretary of State to decide on its form and content; it remains, to use the phrase of the noble Lord, Lord Oxburgh, a "ministerial diktat". Moreover, it applies only to another place to make recommendations, and even then Ministers are under no obligation to follow them.
	I do not regard this as an acceptable or appropriate way of handling these hugely important policy statements. It is essential that they must have the positive approval of Parliament before they can be applied by the Infrastructure Planning Commission. I see no reason why both Houses should not be fully involved in this process; after all, our roles are, in many ways, complementary. It is quite right that local and constituency interests should be of primary concern to Members of Parliament—who, of course, are also concerned about the national implications—but Members of this House, while always respecting the constituency interests of Members of another place, can sometimes bring a wider application of the law to bear on matters of national interest.
	At the end of Second Reading the Minister explained why she does not accept this. She said:
	"However, requiring parliamentary approval of national policy statements, rather than ministerial accountability for them, would create an entirely different proposition and take us into unknown country".—[Official Report, 15/7/08; col. 1236.]
	I find that rather a strange statement. She then went on to quote her honourable friend—the right honourable John Healey, as he now is—who said in another place:
	"Given that the policy statements are policy documents, they are closer to planning policy statements ... which are not subject to parliamentary approval, than to legislation. I do not see a ready- made model or suitable precedent for a binding vote on such statements of policy. Unlike with legislation, we could be taken"—
	this has been echoed by the noble Baroness—
	"into unprecedented and problematic territory if the two Houses were to take a different view of the policy that might be contained in a national policy statement".—[Official Report, Commons, 2/6/08; col. 574.]
	On the question of what would happen if the two Houses disagree, this House—particularly following the report of the noble Lord, Lord Cunningham of Felling—has always recognised the supremacy of another place. We have asked that we should be entitled to have our say and our vote and then, if another place disagrees, we gracefully yield to it. That statement by Mr Healey was not right because the convention is that this House will always recognise the supremacy of another place.
	But is this taking the matter into unknown territory? That is a very strange proposition. One example of where this has happened in the past relates to two sections in the Constitutional Reform Act 2005—not so very long ago—legislation brought forward by the present Administration. It contains a provision which gives a power to the Lord Chancellor to issue guidance to the Judicial Appointments Committee as to its procedures for the selection of judges. Section 66 states:
	"Before issuing any guidance the Lord Chancellor must ... consult the Lord Chief Justice",
	and then,
	"lay a draft of the proposed guidance before each House of Parliament ... If the draft is approved by a resolution of each House of Parliament within the 40-day period the Lord Chancellor must issue the guidance in the form of the draft".
	First, that applies to both Houses, not only to the House of Commons; secondly, it requires affirmative approval; and, thirdly, it is not a statutory instrument by any stretch of the imagination—it is a policy proposal put forward by the Government. It is an example of a government proposal being voted on by both Houses of Parliament. If the proposal is thought to be of sufficient importance—clearly that one was and I argue that this one is—it should require the approval of both Houses.
	These national policy statements will be hugely important proposals. The planning policy statements already have the force of law, as the noble Baroness made clear in one of our debates. She said that,
	"planning policy statements are not optional; they are the law".—[Official Report, 8/10/08; col. 266.]
	This should apply even more firmly to the national policy statements, which are largely intended to take the place of the planning policy statements. As such, Parliament should have a positive, affirmative vote in each House.

Lord Cameron of Dillington: Clause 9 is at the heart of the Bill—or at least those parts of it that seek to speed up infrastructure projects. The national policy statements really make it work and allow the IPC to proceed to do its business with due democratic authority. It is right that national policy statements should be decided at national parliamentary level, which, as I said earlier, is a new development for our planning system. We must ensure that we utilise the full voice and expertise of Parliament as a whole.
	I know that this is not the time or the place to debate the future make-up or role of this House—that has been done ad nauseam and will probably continue to be done at other times—but in that debate it has always seemed to me that the one question that cannot be asked enough is how we ensure that we continue to have a House of experts, as we have in this House, not only inputting into the legislative process but contributing in a variety of different spheres and ways to the future well-being of our nation.
	National policy statements are a prime example of where real, experienced expertise will be imperative, whether we are talking about nuclear power stations, ordinary power stations, highways, airports, railways, water storage or other engineering projects, not to mention simple, straightforward planning expertise—if planning expertise can be simple. We in this House have our share of the nation's experts. Experts know how to ask the right questions; they know how to set the right parameters. Above all, they have credibility and integrity, which means that they are slightly less likely to succumb without question to the Whip, as happens in the other place.
	I do not think that a Joint Committee of both Houses quite achieves what I am looking for in this clause. It is, as the noble Lord, Lord Jenkin, said, up to this House how it handles these numerous NPSs and their rolling reviews. If Amendment No. 80 is successful, I suggest that a simple scrutiny committee, with the power to co-opt the necessary expertise from within the House, will suffice. The committee should have the power to make the necessary recommendations to, and enter into negotiations with, the Secretary of State and eventually either release the NPS from scrutiny, or otherwise. The key question is what happens when we come to "otherwise" and there is a deadlock between the Secretary of State and the scrutiny committee. Bearing in mind my inexperience when it comes to parliamentary procedures, I would favour Amendment No. 82 in the name of the noble Lord, Lord Berkeley, or Amendment No. 83 in the name of the noble Baroness, Lady Hamwee. Each House as a whole would vote on the national policy statement and have the ability to accept or reject it—always, as the noble Lord, Lord Jenkin, has said, bearing in mind the supremacy of the other place.

Baroness Hamwee: I have been impressed by how the Government have developed the thinking and the debate on this area of the Bill. Clearly some issues remain—the fact that I have tabled four amendments in this group indicates that I would like to take some matters further. I have read the Commons Hansard and learnt what has happened behind the scenes—not just who does it but how it is done—and the Government's thoughtfulness has impressed me, even if I do not necessarily share their conclusions.
	The issues in this group fall into two distinct parts. One concerns the scrutiny of the proposed policy statement. I tabled an amendment proposing that it should be scrutinised by a Joint Committee of both Houses, in which case there would need to be discussions with the other end. Impressed though I have been, it is a pity that discussions at the other end have continued apace without, as far as I can discern, any reference back to this House.
	Not to involve Members of this House is both daft and wrong. It is daft because of the expertise and the time that some Members here could devote to this matter; it is wrong because we are a part of Parliament. To get the scrutiny right is almost more important than the final vote, as it gives the opportunity for detailed consideration of very complex issues. When we come to vote on a proposed NPS, we will inevitably polarise and tend to simplify some of the arguments, because we will have one vote. I know that I am affected—some might say infected—by eight years of doing a scrutiny job, but I believe that it is important for that process to be as good as possible.
	There are issues of capacity; Parliament needs a variety of mechanisms, and this is a part of the consultation. It is not a passive process, as my noble friend said in an earlier debate. I guess that we will be told that it is a continuous and iterative process, but the sequence is important.
	If there are issues of locations, one can see the enormous controversy that there could be and the possible risk of legal challenge if the consultation is not carried out correctly. Any committee will probably have huge numbers of representations and requests to be heard, which is why I would like to see Members of this House involved.
	On the final vote, I cannot imagine explaining to the many millions of people who are concerned about the development of Heathrow that this House has no role in shaping the final formal policy statement. It seems completely counterintuitive. I understand the concerns that the Minister will have about not setting the two Houses against each other, which is why getting the scrutiny right is particularly important. However, we cannot forget about the politics, because the NPSs are political statements. The noble Lord, Lord Jenkin, is absolutely right to direct us to the final approval.

Lord Berkeley: I have a couple of amendments in this group. The variety of ideas in the group and the contributions tonight indicate a lot of concern about how this will work. I agree with the noble Baroness, Lady Hamwee, that the Government have done a great job in getting this far with an extremely tricky issue. She asked how we would scrutinise and approve a national policy statement for Heathrow, or other airports, which would include a site-specific third runway. Would that mean that the whole House approved the creation of a third runway? It is an interesting question, which we must debate.
	The House would be well advised to scrutinise these NPSs separately. We will have to find a way of doing it, as there will be quite a lot to get through given that each sector has an NPS and they have to be updated. We will have to find a way of doing it. As suggested in my Amendment No. 82, when we scrutinise a statement we should be able to approve it or not, along with the other place.
	This raises some interesting issues. I do not have a solution and I am not sure that anyone else has come up with one, but we have had a good debate about it. I would like the opportunity for a small scrutiny committee, which could co-opt Peers with particular expertise in different fields, to be able to do this, but how it would do it and how long it would take need discussing in the next week or two.

Lord Turnbull: I agree that there are two basic issues here. The first is: one House or two? Certain features of our parliamentary work are reserved for the other place—for example, the Finance Bill—but I cannot see that planning is one of them. I am beginning to think that the other place has got into the habit of conflating the word "Commons" and the word "Parliament", when they are two different things. We should rightly press for the inclusion of this House on grounds both of constitutional principle and of the expertise that is here and should be fully involved in all stages.
	The second issue is whether the Secretary of State's conclusions should simply be laid or be voted on and endorsed. When we were discussing Clause 1 last week, I strongly supported the division between the NPS and the Infrastructure Planning Commission, arguing that it is appropriate to delegate to the IPC the final decision where it operates within a democratically approved framework. Does the Secretary of State laying the conclusions represent a democratically approved framework? This has been argued at Second Reading here and in the other place. John Healey, explaining to Jacqui Lait why he did not agree with her amendment, said:
	"When she spoke to her amendments, she was right to say that the House will not own the policy. The policy is properly the responsibility of the Government and elected Ministers".—[Official Report, Commons, 2/6/08; col. 602.]
	When does policy become policy? Is the mere act of laying enough to turn an idea into policy?
	I gave a number of examples last week of where there was a framework and a delegated body took the decisions. One of them was the courts, where the definition of a crime and a penalty is enshrined in the hundreds of criminal justice Bills that we have seen go through this Chamber. Another is tax, which is enshrined in the Finance Bill every year. The Competition Commission was created by legislation in the normal way. A partial exception to this is the Monetary Policy Committee, where the framework was part of legislation but the one decision about the inflation target is reserved for the Chancellor of the Exchequer. I do not think, with due respect to the Minister, that we are in unknown territory; we are within the scope of known and existing practices.
	Which one do we want to plump for in this case? For two reasons, I think that we should plump for the practice that requires that the final conclusions be endorsed by Parliament. First, as a number of noble Lords have mentioned, the more the policy is clear, the more difficult it is for it to be challenged in the courts, which people think is a good thing, or for objectors to try to unpick something at a very late stage. Secondly, it would make a success of the IPC, in which I strongly believe. It will be more successful if it operates in a clear framework. The noble Lord, Lord Jenkin, gave an example last week of the rate-capping dispute with local councils, where the authority of the Minister was strengthened by having the backing of Parliament. The IPC will need that authority. Moreover, it gives the IPC the answer to the question, "What right have you to decide this?". The answer is: "Because both Houses of Parliament settled the policy within which we are operating". Revisiting this matter will enhance the way in which Parliament works as well as increase the chances of success of the project as a whole.

The Earl of Caithness: I support the amendments. I raised the point at Second Reading and was quite vitriolic in saying to the Minister that to bring a Bill of this nature before this Chamber without it having any input to the final decision was wrong. Amendment No. 75 in the name of my noble friend Lord Dixon-Smith is the right one: the decision should be for the approval of both Houses. That is justified by what the noble Lord, Lord Turnbull, said. It gives much more credibility to the IPC and the national policy statements.

Lord Woolmer of Leeds: I hope that mine is not the only voice to speak against the amendments. The Minister will reject them. As I see it, the Government are the Executive. The argument that moral authority would come about only if both Houses approved something is fallacious, for two reasons. First, the moral authority—I always look with great care when people call in aid "moral authority" when arguing for something—or legitimacy of national policy statements will come about from the framework in which they have to be formulated, the consultation and the care and rigour with which the outcome of those consultations is considered and responded to. At the end of the day, the national policy statement will be a very carefully assessed and balanced judgment of some fairly complex issues about which there are a lot of strong feelings. But a judgment has to be made.
	As with anything that the Government of the day do, they have moral authority if people feel, on balance, that consultation and taking account of public opinion and stakeholders in all kinds of decisions are done with care and that a judgment is overwhelmingly good. If the public start to feel that the Government are not listening carefully to what they say, or that they listen but have faulty judgment, any Government and Secretary of State lose that moral authority. Secretaries of State suffer the penalty of being sacked, and Governments are ultimately sacked by the electorate. The Government of the day, through the Secretary of State, will have the moral authority, provided all those things are done carefully. If they do not, they will suffer the eventual wrath of the electorate.
	Let us turn to the moral authority of Parliament. I shall turn in a moment to the question of both Houses or one House. Let us assume that the Government have set down draft proposals, have consulted carefully and widely over some months, have listened to what has been said, have responded carefully—perhaps even iteratively so by having more consultation—and then have reached balanced and careful judgments. Let us say that the proposals go to the House of Commons, where a committee might consider them. That committee will then form its own judgment, which might be quite different. Indeed, it might be—dare one say?—even more politically motivated than a Government. There is no necessity for that committee to have the same regard to all due processes.
	Noble Lords who have spoken on this have said that the mere act of giving parliamentary approval is the moral authority, whether or not Parliament takes a decision on the same careful, balanced judgment of facts. There could be a hung Parliament—the House of Commons could be hung, and there could be horse-trading. Look at how on Capitol Hill in the United States they dealt with the big loan bail-out: they added $200 billion on to the Bill just through pork barrel politics to get the overall figure. Anybody who wants to talk about the moral authority of elected Houses in reaching careful judgments should remind himself of the picture on Capitol Hill only a few weeks ago.
	Even if a committee was careful, it could not possibly spend the same amount of time that the Secretary of State spent in many months of careful consultation. Even if a Select Committee or committee sought to be careful, whatever its recommendations to the House of Commons, the vote there might have no regard whatever to what the committee recommended or the process that it went through. It would be a straightforward vote.
	I am reminded of the vote in the other place on whether the second Chamber should be elected or not. We all know that there was a vote for an 80 per cent elected Chamber but all those who really opposed an elected House got together and voted for a 100 per cent elected Chamber because they thought that it would sink the whole enterprise. The official position of the House of Commons is that it is in favour of a 100 per cent elected Chamber, exactly because they did not want that to happen. So let us not use words like "moral authority". It simply is not accurate. The Government have their job while the House of Commons has another in holding the Government to account.
	This is not the elected House and it should not duplicate everything that the House of Commons does. We should be very careful before we go down that route. We are here to scrutinise legislation; with the agreement of the Commons, we have done a lot more on European Union legislation than the Commons—but that might change over time. This House is given a role under Clause 9, which says that either House may make,
	"a resolution with regard to the proposal".
	The House can genuinely debate something and, if it is so minded, can pass a resolution; but we have to be very careful what kind of resolution we pass, because of the sheer complexity of the issues. What are we going to do, when all this public consultation and care has gone into the proposal? We are entirely entitled to debate and pass resolutions, but to have our own committee or sit on a Joint Committee with the other place would be simply wrong; this House would be seeking to go beyond its role and function. Of course, if there was a wholly elected second Chamber and the conventions started to change, you could well find that an elected House took a different view—but we are not an elected House.
	I hope that the Committee on reflection does not press the amendment to a vote and that it feels that on balance it has been a debate worth having but not a point to push.

Baroness Andrews: I am extremely grateful for this very thoughtful debate on a matter of absolutely central interest to this Chamber. I am very grateful to my noble friend for setting out better than I could much of the case that I will make. I am particularly grateful to him for raising the notion of moral authority going beyond this narrow definition of a vote in either House and referring to the whole integrity of the process that we are trying to establish for national policy statements. I want to address the issues raised on the relationship between parliamentary scrutiny and approval. I am very aware of business waiting, so I shall try to be concise.
	We stated very clearly that we are committed to a stronger role for Parliament in scrutinising the national policy statements; we have formalised the process to allow for that. I am very grateful to noble Lords for recognising what went into the construction of that process. I shall describe it briefly, because it is unique and innovative.
	Although national policy statements are going to be important and innovative, they are ultimately documents of policy. They set out government policy and ministerial accountability. They are not primary or secondary legislation but a new sort of parliamentary instrument. The nearest analogy that we can make is that they are similar in many ways to planning documents or White Papers, and certainly they are not subject to parliamentary approval. Although both the noble Lords, Lord Jenkin and Lord Turnbull, chided me for saying that we were in new territory, I do not resile from that. The examples that they give are genuinely different; they are specific and partial within the context of some rather broad legislation.
	National policy statements are different; they are broad and the first of their kind, much wider in scope and more significant in depth. They bring into question the relationship between the role of government in making policy as a whole and the role of Parliament in scrutinising things. We blur the distinction between the role of Parliament and the Executive at our peril, and I think that this is a step much too far. I commend what my honourable friend said in the other House about why we do not believe a vote of approval is necessary or appropriate.
	I shall backtrack and explain the journey that we have made in this Bill towards parliamentary accountability and scrutiny, because it is unique. When the Planning Bill was first introduced, we made a commitment to provide a stronger role for Parliament. The other place was encouraged to consider setting up a Select Committee as part of that process, possibly drawn from the expertise of the four relevant departmental committees, but it was always acknowledged that it was for the House itself to decide what procedures were appropriate for each NPS. Together with the chairs of the Select Committees, over a considerable amount of time, Ministers have worked out a possible process for Commons committee examination of national policy statements, either by one of the relevant existing departmental Select Committees or a single new committee drawn from their membership.
	The committee would examine the draft national policy statement in a timeframe largely parallel to that for public consultation, and it would report to the House with recommendations, including whether the issues merited debate on the Floor of either House. The Government would make time available for debate in each House, if the committee recommended it. The period for parliamentary scrutiny would continue for four to six weeks beyond the close of public consultation, to enable the Select Committee to take any additional account that might be necessary of the significant issues likely to be raised during public consultations. Ministers have undertaken to ensure that briefing and information on those issues is made available to the Select Committees to enable them to do this. That is a credible, rigorous and unique process.
	Ministers would then consider what change was needed to the draft NPS in the light of the views of the Commons committee, and, significantly, in respect of any resolution of either House and public consultation. They would lay a Statement setting out their response before Parliament and revise the draft proposals as appropriate before laying the final version of the NPS. This House will be fully involved. If we are searching for moral authority, we find it in the equivalence of both Houses.
	The procedure has taken time and effort to agree, because it has been so carefully worked out. It is a thorough and robust scrutiny process. It recognises the nature and expertise of the departmental Select Committees in the other place and their long history in holding departments to account. It acknowledges that regard must be had to the views of either House, speaking, as it were, collectively. The noble Lord said that the Government had only a duty to respond, but that is a powerful obligation to place on them.
	This procedure will allow Parliament to look at each detail of policy and make recommendations that Ministers will have to take into account before laying the final policy statement. That will help to ensure that the provisions are the right ones, and take into account the full range of issues that should be captured. It will also ensure that NPSs are widely seen as authoritative statements of policy, appropriate for the roles that have been set for them. In terms of this House, our expertise and commitment are recognised in the fact that time will be made for a debate and for any resolution of this House.
	Before dealing with particular amendments, let me first address the other amendments in the group, relating to timing and sequencing. In Amendment No. 81, the noble Baroness, Lady Hamwee, would like the "relevant period" for scrutiny to be not less than six months. We all want there to be sufficient time, but we also all want a process that is genuinely speedy and focused. We know that NPSs vary considerably, and in many cases Parliament may be scrutinising a minor amendment following a review. The sort of timetable the noble Baroness proposes is not strictly appropriate. It is too rigid and we need greater flexibility.
	Amendment No. 76 argues that the scrutiny process would be improved by requiring that parliamentary scrutiny take place once public consultation has concluded. That would add unnecessary length and resource costs. We have allowed a hangover period of four to six weeks for the Select Committee to take additional account of what has been raised in public consultation. That should be sufficient. We do not want to extend the period. We want to be able to make substantial revisions in the light of the views of the public and statutory consultees and we have allowed properly for that.
	I now turn to the amendments on the parliamentary committee and scrutiny by the committee. Amendment No. 79 in the names of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Jenkin, would require the Secretary of State to respond to recommendations of a Joint Committee of both Houses. The noble Lord has already made the essential point. It raised particular issues. There is a serious question about whether it is appropriate at all to place such a requirement in the Bill. As we all know, the decision to set up a Joint Committee is a matter for both Houses. It presumes the agreement of both Houses, but one cannot always take that for granted.
	On Amendment No. 80 in the name of the noble Lord, Lord Cameron, he will know that, although Clause 9 does not specifically mention committee scrutiny in this House, nothing in the Bill prevents this House from deciding to set up a committee to look at and report in any form on one or all NPSs. Indeed, a proposal along these lines may have some merit. However, I have listened to the arguments. I do not need to be persuaded of the expertise of this House, not least standing at the Dispatch Box in the context of this Bill. I also know that we deploy our expertise and experience with care and proportion. There is merit in looking at ways in which this could be brought to bear most effectively in the consideration of draft NPSs. If the House will allow, therefore, I propose to take this amendment away to give it further thought. With that assurance, I hope that noble Lords will be able to withdraw their amendments.

Lord Dixon-Smith: I had thought that this would be the big debate of the evening, but surprisingly we have run out in less time than the previous debate on consultation. However, in terms of importance and significance, this is the debate that matters most this evening.
	I am grateful to my noble friend Lord Jenkin for setting out the background to this, particularly the parliamentary precedents that quite clearly indicate that what we are looking for is within existing practice in other areas. I do not intend to pick up the points made by everybody in the Committee because that would be a bit hard at this hour of the evening. In any event, I rather think that the meat came towards the end. We need to take very seriously what the noble Lord, Lord Turnbull, had to say. He said that what we are suggesting is within existing practice and would strengthen the position of the Infrastructure Planning Commission. Coming from a man with his background, that is a significant statement.
	The noble Lord, Lord Woolmer, got into an interesting position. I found his discussion rather depressing. He clearly has no confidence in Ministers' capacity to persuade Members of either House to accept the position that they adopt. I found that slightly peculiar. Of course, he had an interesting time trying to question the moral authority of Parliament, but I accept that the Government go through a long procedure in order to reach a conclusion. However, if having gone through that procedure, which is known, they are unable to persuade Parliament that they have come to the right conclusion, the decision is flawed.
	Finally, the Minister said that national policy statements are government policy statements and that they are therefore to be inviolate. However, she opened up the dreadful prospect of a national policy statement that lasts as long as a Parliament and no longer. We have to be above that in these decisions. There is no question in my mind that, if we want this Bill to succeed, we cannot have a situation where these are simply statements of the Government of the day. That will not do.
	That is enough for me for now. We will go away and consider very carefully what the Minister has said. I am grateful for her explanation, even though I disagree with it. She should not be surprised if we wish to bring this back with rather more determination on another occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 76 to 83 not moved.]
	Clause 9 agreed to.
	[Amendment No. 84 not moved.]
	Clause 10 [Sustainable development]:
	[Amendments Nos. 85 to 87 not moved.]
	Clause 10 agreed to.

Lord Patel of Bradford: I beg to move that the House do now resume.

Moved accordingly, and on Question, Motion agreed to.
	House resumed.

European Parliament (House of Lords Disqualification) Regulations 2008

Lord Trefgarne: rose to move that an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 24 June, be annulled (SI 2008/1647).

Lord Trefgarne: My Lords, I am not an ardent Euroenthusiast, but nor am I an extreme Eurosceptic. I am not in favour of a United Kingdom withdrawal from the European Union, for example, and I could perhaps be persuaded to look again at the single European currency, although I confess that I think that many European institutions, especially the Commission, need reform. However, those are matters for another day. I mention them only to make it clear that my Motion tonight is not a ritual exercise in Eurobashing. I have a number of questions about the regulations to which my Prayer refers, which I hope that the noble Lord, Lord Bach, will be able to reply to in due course. I am grateful to him for coming to the Dispatch Box this evening; incidentally, I warmly congratulate him on his new appointment.
	The purpose of the regulations is to disallow life Peers in your Lordships' House from sitting or voting if they become Members of the European Parliament. They apparently emanate from a decision of the European Council of Ministers, and we are obliged to pass them into law—an obligation that we long ago accepted, wisely or not. However, since when was an assembly or parliament in another state entitled to say who should be Members of your Lordships' House? I suppose that it is open to the European Parliament to receive a Member of your Lordships' House but, to put it the other way around, to interfere with our national selection of who should be Member of this House seems an altogether different matter. They can say who they want in their parliament, and surely we should say who we want in ours.
	The Merits of Statutory Instruments Committee has been unusually scathing about these regulations. Your Lordships will have seen its report, which says:
	"Under these Regulations, MEPs will join aliens, bankrupts, those under 21 and those convicted of treason as the groups disqualified for membership of the House".
	It goes on to say that, in a little while, judges will apparently be disqualified for some other reason. What a very distinguished group that will be.
	One of the idiosyncrasies of the regulations, referring as they do to life Members of your Lordships' House, is the exclusion of hereditary Members. It would seem that, while all the life Peers in this House will, when the regulations come into force, not be able to sit in this House if they become Members of the European Parliament, I and the rest of the hereditary Peers will not be so excluded. Incidentally, nor will the Bishops; how many Bishops are planning to stand for the European Parliament, I could not say, but they will not be excluded from doing so if they so choose.
	I do not necessarily disagree with the proposition that membership of two assemblies or parliaments is not a particularly good thing. However, that is surely a matter for the candidates who seek such election and, above all, those who are asked to elect them, or otherwise, when they come before the electorate. Membership of the House of Lords with Membership of the European Parliament is perhaps a difficult juggling act. I know that there are currently at least two or three Members of your Lordships' House who are also Members of the European Parliament; I can see one or two of them around me as I speak. I offer no view as to whether that is a good thing or a bad thing. It is a matter for the noble Lord or noble Baroness concerned and those by whom they seek to be elected.
	I end with two questions. First, on hereditary Peers, am I right in thinking from my reading of the regulations that hereditary Peers are indeed not treated in the same way as life Peers?. If that is the case, why not? Secondly, the recent appointment of the noble Baroness, Lady Ashton of Upholland, as a commissioner has been widely applauded; not least, if I may so, by me. However, under present arrangements, will she remain an active Member of the House, or will she take leave of absence? There is one—

Lord Bach: My Lords, I did not mean to interrupt the noble Lord. I can answer this question now: my noble friend is due to take leave of absence almost as we speak.

Lord Trefgarne: My Lords, I am interested to hear that. There is one precedent. I think I am right in saying that the late Lord Cockfield was also a commissioner and a Member of this House. I confess that I cannot remember whether he took Leave of Absence or not. If the noble Baroness has decided to, and the late Lord Cockfield did likewise, that is entirely appropriate.
	However, there are a few "i"s undotted and "t"s uncrossed in these regulations. The Government will presumably in due course produce a response to the Merits Committee, which has, as I say, been so scathing. They will no doubt have to consider carefully in preparing their response to that criticism. It is perhaps a little unfortunate that that careful consideration did not come before the regulations were placed rather than afterwards, but the Minister will no doubt explain that. In the mean time, I beg to move.
	Moved, That a Humble Address be presented to Her Majesty praying that the Regulations, laid before the House of 24 June, be annulled (SI 2008/1647). 24thReportfrom the Merits Committee—(Lord Trefgarne.)

Lord Norton of Louth: My Lords, I, too, begin by welcoming the noble Lord, Lord Bach, to his position. That exhausts the positive comments I shall make this evening.
	I support my noble friend Lord Trefgarne in praying against the regulations. The Government have got themselves into a mess by agreeing to something that they should not have agreed to, and have now sought to correct the situation as it affects this House by bringing forward regulations that are palpably deficient.
	When the 2004 regulations giving effect to the ban on the dual mandate were going through the House, I was the only person to rise, albeit briefly, and question the justification for them. The ban on the dual mandate is, to my mind, an infringement of the freedom of choice of electors. It is for electors to decide who they wish to represent them. If they wish to send the same person as their representative to Westminster and to Brussels, then it is a matter for them. It may be that the person is not able to do both jobs, but that is a matter for electors, not for the Council of Ministers. If the electors of Northern Ireland, for example, did not wish Ian Paisley to sit in the House of Commons and the European Parliament, the remedy was in their hands.
	I therefore object to the ban—but we now have it. However, as we have heard, it creates a problem that is peculiar to this House. The Government have sought to address the problem through these regulations. However, as my noble friend has explained—and is abundantly clear from the report of the Merits Committee—they are deficient.
	They are deficient in three respects. First, as we have heard, they apply only to life Peers. I looked at the Explanatory Memorandum to find a justification for confining the regulations to life Peers. The only justification appears to be in paragraph 7, which refers to life Peers and states in parenthesis,
	"who are unable to resign their peerage".
	The hereditary Peers sitting in the House are unable to resign their peerages. Why, then, the discrimination? It appears that the regulations may have been drafted by someone who is unaware of the provisions of the Peerage Act 1963 as they affect hereditary Peers.
	Secondly, the regulations inject a subsection which appears to be superfluous. Paragraph 4(1)(a) disqualifies a life Peer who is elected as an MEP from sitting or voting in the House of Lords. Paragraph 4(1)(b) then extends the disqualification to sitting or voting in a committee of the House of Lords, or a Joint Committee of both Houses of Parliament. Perhaps the Minister could explain how, if one is disqualified from sitting in the House of Lords, one could be considered for serving on a committee of the House.
	Thirdly, as we have heard, the regulations are deficient in respect of the writ of summons. If one is elected as an MEP a year or so after the start of a new Parliament, one is already in receipt of a writ and paragraph 4(2) can only take effect two or three years later when a new Parliament is summoned.
	In short, there are few parts of the regulations which are not deficient. Regulation 5 appears to raise no problems, but Regulations 3 and 4 are fundamentally flawed. I trust that the Minister will therefore withdraw the regulations and come back with one that, following consultation with the relevant authorities as recommended by the Merits Committee, is drafted in such a way as to pass muster.

Lord Hannay of Chiswick: My Lords, I would like to address a couple of points raised by this Prayer. First, is it reasonably justified for the European Parliament to have taken the view, and to have persuaded the member states of that view, that the dual mandate is incompatible with an effective European Parliament? Other noble Lords, such as the noble Lord, Lord Kingsland, know far more about the European Parliament than I do, but I believe that it is entirely justified. The work of the European Parliament has increased a great deal over recent years and is still increasing. It is basically a full-time job. It is right that the member states have recognised that by saying that the dual mandate is no longer acceptable. I am sure that constitutional arguments on that point can be raised by the noble Lord, Lord Norton, but I merely ask whether it is reasonable for the European Parliament and the collectivity of the European Governments to conclude that they want full-time Members of the European Parliament. I answer that with a certain and resounding yes. Probably no parliament has suffered more from dual, treble or quadruple mandates than the European Parliament did in its early years, with people coming in for a very brief time, then going away again and treating it with little respect. Therefore, I think that the move to ban the dual mandate was absolutely right.
	Then there is the question of its impact on Members of this House. On that I merely say that I think the case has been rather misrepresented. The regulations do not exclude somebody from this House permanently, as it were; they merely exclude them temporarily while they are Members of the European Parliament. They do not prevent them becoming a Member of this House again when the fixed period leave of absence, which after all is only a very minor change to the existing rule on leave of absence, comes to an end. Therefore, I consider that it is entirely reasonable for the Government to have acted in this way.
	I do not want to enter into all the details of the drafting. The two large issues are: is the European Parliament right in thinking that it needs to have full-time Members and is it reasonable that a Member of this House who wants to become a Member of the European Parliament should be able to do so while conforming to the rules laid down by the European Parliament? I answer yes to both those questions and no to the Motion that has been moved.

Lord Trefgarne: My Lords, before the noble Lord sits down, may I ask him why he adopts such a cavalier approach to the view of the electorate in this matter?

Lord Hannay of Chiswick: My Lords, I am not adopting a cavalier approach to anyone, least of all, unlike the movers of this Motion, to the European Parliament.

Lord Forsyth of Drumlean: My Lords, I do not expect that the argument advanced by the noble Lord, Lord Hannay, about people abandoning Europe before their term of office is completed will be advanced from the Front Bench today for obvious reasons. Frankly, I am rather puzzled. I am very grateful to my noble friend Lord Trefgarne for raising this matter. I do not propose to repeat any of the arguments that he and my noble friend Lord Norton of Louth have advanced. However, it seems to me that there is a very important constitutional issue here. When I heard the noble Lord, Lord Mandelson—of Foy and wherever else it is—being sworn into this House this very week, I did not hear any exclusion from Her Majesty in respect of membership of the European Parliament or any other matter. That is quite extraordinary. Is this principle to be applied by the Government? Do the Government now feel that people should not be able to be Members of this House for life and to carry out their duties in this House for life if they are members of other assemblies?
	I am amazed that the noble Lord, Lord Foulkes, is not participating in these proceedings. Are we to be told that the European Parliament uniquely is different from the Scottish Parliament? Why is it possible for a Member of this House to vote and speak in this House and be a Member of the Scottish Parliament but not the European Parliament? What of the promise set out in the writ that each of us received as life Peers? This is another example of this Government messing around with our constitution, creating anomalies and long-term difficulties which have not been thought through. The Government are, of all people, the victim of ill-thought-out constitutional change north of the border. On that specific point, I ask the Minister, do the Government now have a general principle that Members of this House cannot speak and vote if they are members of other legislative bodies?

Lord McNally: My Lords, there are problems as regards the argument expounded by the noble Lord, Lord Forsyth. The problem has its roots in the failure of this House to reform itself. Once we came up with the compromise nearly a decade ago, we were bound to be left with rough edges and compromises. I always look to one of my great political heroes, George Woodcock, who said that good trade unionism was a series of grubby compromises. Once we had baulked at really reforming this House, we were going to be faced with a series of grubby compromises.
	However, the noble Lord, Lord Norton of Louth, is trying to take us back to a decision the House has already taken. We have taken a decision on dual mandate. I am sure that some of the contradictions exist as regards other assemblies that both he and the noble Lord, Lord Forsyth, pointed out. However, the fact is that that matter has not been decided as regards dual mandate from other assemblies. Dual mandate as regards the House of Lords has been agreed by Parliament, and now we are looking at the consequences of that.
	I am well aware that members of my flock come within the ambit of this. However, I can say with my hand on my heart that, wherever this applied I would think that it was a sensible way forward. As has been pointed out, it allows other members to make that decision in the future.
	I also read the report by the Merits of Statutory Instruments Committee. I am growing fonder and fonder of the Merits of Statutory Instruments Committee, because its ability to bite the ankles of Ministers gives me great pleasure. I look forward to the Minister's response to the report. The noble Lord talked about dotting the "i"s and crossing the "t"s; the "i"s and "t"s have been left alone. As I said before, that is perhaps part of the problem of dealing with this House, in which the noble Lord, Lord Norton of Louth, has been chief on stalling on proper reform. Therefore, we will have to make do and mend as we go along.

Lord Norton of Louth: My Lords, the noble Lord is not addressing the issue that we raised. The problem is not the principle that is embodied in the order; the drafting of the order is the problem. I accept that the ban on the dual mandate is now a fact, but it creates a particular problem for this House, which the order seeks to correct. The problem is in the drafting of the order. The order is deficient; not the principle that underlies it.

Lord McNally: My Lords, that is why I look forward with more expectation and eagerness than usual to what I am sure will be a very complete ministerial reply.

Lord Kingsland: My Lords, I congratulate my noble friend Lord Trefgarne on bringing this important matter to your Lordships' attention in his characteristic style. My noble friend rightly drew your Lordships' attention to the 24th report of the Merits of Statutory Instruments Committee, HL Paper 136, dated 3 July 2008. It makes some extremely adverse observations on the regulations.
	It is the regulations that we are asked to focus on tonight, rather than the principle that lies behind them. I listened with interest to the exchange between my noble friend and the noble Lord, Lord Hannay, about the merits and demerits of a dual mandate. Much as I would like to get into that tonight, it is not germane to the issue that the House has to confront. I hope that my noble friend and the noble Lord will excuse me if I do not trespass into that disputatious territory.
	The judgment of the Merits of Statutory Instruments Committee is that the regulations are drawn to the special attention of the House on the ground that they may inappropriately implement European Union legislation; which is exactly what they do. One of the observations made by my noble friend Lord Norton of Louth concerned paragraph 4(2) of the regulations, which refers to Writs of Summons. It states:
	"No writ of summons shall be issued to a life peer while disqualified under this regulation".
	My noble friend colourfully and effectively explained that that is nonsense; because it is much more likely than not that a European election will not coincide with a new Parliament. Every Peer must be issued with a Writ of Summons before he or she can come to your Lordships' House. Halfway through, there may well be an election to the European Parliament, in which a particular Peer translates from your Lordships' House to the European Parliament; but the Writ of Summons will still have been issued. There is nothing that your Lordships' House, another place, this Parliament or the European Parliament can do about it. It is not just sloppy drafting, but sloppy thinking by the Government.
	In fact, the Government could probably have avoided all this, had they taken the following advice from the Merits of Statutory Instruments Committee:
	"We asked the Government whether they consulted the House authorities or any Committee of the House (Privileges or Procedure), before making this instrument and they confirmed that they did not. We consider that unfortunate. While the principle of the policy is non-negotiable, there is scope for implementing the disqualification in a variety of different ways and the House should have been consulted on the options".
	The Writ of Summons is an absolute classic example of that. There were disputes in the 17th century between Charles I and the Committee for Privileges of your Lordships' House precisely about the Writs of Summons. The last word was had by the Committee for Privileges. What are the Executive doing interfering in the issue of Writs of Summons? It is not the Executive's business; it is the business of your Lordships' House, through the Committee for Privileges. Here is another example of sloppy thinking by the Government.
	Given those last few words that I quoted about there being other ways of implementing the disqualification, we know that the Government are concerned about the possibility that if an hereditary Peer is disqualified it would reduce the number of hereditary Peers in your Lordships' House by one for the duration of a European Parliament, and there might be clamour by the hereditary Peers. I am sure that there will not be; but it is the suspicion that, I suspect, lies in the Government's mind that that could occur.

Lord Trefgarne: My Lords, there would indeed be a clamour—from me.

Lord Kingsland: My Lords, that was a completely unrehearsed intervention by my noble friend. There is a simple solution to this problem. All that your Lordships need to do is alter our Standing Orders, whereby any of your Lordships, whether in origin life or in origin hereditary, could stand down for five years. That would have exactly the effect that the regulations have but would at the same time incorporate the hereditary Peers.
	My understanding is that the Government are opposed to the Standing Order procedure because they say that Standing Orders of your Lordships' House are not law and could be changed by the House, although most of them have not been changed for several centuries. Moreover, your Lordships could give a commitment in the Standing Order not to change it for five years.
	The philosophy that lies behind the Government's objection is even stranger. Our constitutional freedoms are based, not on laws, but on constitutional conventions. If only the law of the constitution were considered, we would still be a crown dictatorship. It is only constitutional conventions, such as ministerial responsibility, that make this country and this legislature democratic. If you stripped away the conventions, we would be a country that could not possibly successfully apply to be a member of the European Community or remain one if we were already a member. At least the Standing Orders have the merit of being written down. None of the constitutional conventions is written down anywhere. The Government's thinking on the inappropriateness of Standing Orders is, frankly, bankrupt.
	I could dwell on other issues, but your Lordships will be relieved to hear that I shall not. One of them is the non-discrimination clause in Article 14 of the European Convention on Human Rights, which refers to differentials in status. The Government have not had to make a statement about the European Convention on Human Rights, as they point out in the Explanatory Notes, because that is not required by the 1998 Act. However, it would be interesting to hear the Government's view on whether they believe there is a breach of the convention.

Lord Lester of Herne Hill: My Lords, the noble Lord, Lord Kingsland, is as good a lawyer as anyone. What does he have in mind? Article 14 of the European convention is triggered only if it is linked to another convention right. Which convention right has he in mind?

Lord Kingsland: My Lords, I concede to the noble Lord that that is true; but I was not asking him the question, I was asking the Government.

Lord McNally: My Lords, will the noble Lord, Lord Kingsland, come clean and say that he was hoping that no other human rights lawyer would be present in the House?

Lord Kingsland: Not at all, my Lords. I have always been extremely relaxed about the European convention, although I have had my moments of drama regarding the Act.
	Finally, my noble friend Lord Forsyth made an observation about the noble Lord, Lord Mandelson, and the European Commission. I quote the diplomatic correspondent of the Times, Bronwen Maddox, from her article on 9 October 2008. She wrote:
	"Baroness Ashton of Upholland spent her first day as European Trade Commissioner yesterday after the Council of Ministers waved away the potential obstacle of her membership of the House of Lords. Brussels commissioners are not allowed to hold any public office but the chief Commission spokesman, Johannes Laitenberger, said that was 'fully in line with the rules' for Ashton to remain a peer (while taking leave of absence from the Lords). He said: 'A life peerage is an honour, not a job'".
	If a life peerage is an honour, not a job, then a hereditary peerage is certainly an honour, not a job. If the noble Lord, Lord Bach, is not inclined to accept my observations about Standing Orders, he has another way out.

Lord Bach: My Lords, I thank all noble Lords who have spoken for the interesting and lively debate that we have had so far. In particular, I thank the noble Lord, Lord Trefgarne, for moving his Motion this evening, and I am grateful to him and the noble Lord, Lord Norton of Louth, for their kind welcome. I am not sure that this is the debut that I would have chosen for myself in relation to a Standing Order, but all good things have to come to an end and I shall at least comfort myself with the compliments that were paid in the typical House of Lords way.
	I start in a way that is not normal for Ministers by saying that I acknowledge absolutely some of the concerns that have been raised in and outside the House about some of the process issues surrounding the regulations. Frankly, we should have consulted the House authorities prior to making the regulations. I hope the House will accept that our failure to do so was not deliberate but was a serious oversight. From this Dispatch Box, I sincerely apologise for the oversight and assure the House that we will learn from our mistake on this occasion.
	However, we believe that the legal and policy mandates behind the regulations are robust. The legal mandate is clear: under both European and domestic law, dual mandates are prohibited. I refer not to the ability to be a Member of both this House and the Scottish Parliament but to be a Member of the European Parliament and any national Parliament in any of the member states. In European law, the 2002 Council decision amended the 1976,
	"Act concerning the election of the representatives of the European Parliament by direct universal suffrage".
	The Act sets out certain common principles that will apply to all member states with respect to elections to the European Parliament. The Council decision builds on the Act, including the provision preventing dual mandates.
	I remind the House that in 2004 both Houses approved the European Communities (Definition of Treaties) (Common Electoral Principles) Order and passed the European Parliamentary Elections (Common Electoral Principles) Regulations 2004, which gave effect to the bar on dual mandates. As the noble Lord, Lord McNally, said, that has been done and it is now a question of how we implement what both Houses of Parliament have decided. The prohibition on dual mandates has, therefore, been a part of domestic law since 2004. Indeed, there was a debate in this House on 27 January 2004 in which the order was discussed, and tonight the noble Lord, Lord Norton of Louth, told us that on that occasion his was the one voice to be raised against it.
	Perhaps I may deal next with the leave of absence point. I know that there are some proponents in the House of relying on the provision for leave of absence to prevent dual mandates. The provision allows a noble Lord to apply for leave of absence at any time. However—this is the problem—it may also be revoked by the noble Lord at any time by giving at least one month's notice.
	The European Parliament's Legal Service, with which we have had many dealings—and I praise it as an institution—has indicated that the current provision would not suffice to satisfy the no dual mandate rule, as it is left to the individual Peer to decide whether to take leave of absence, rather than making specific provision that an MEP cannot sit in the House. Allowing life Peers, if elected as MEPs, to use the leave of absence provision in the House of Lords might be viewed as being in breach of the EU law prohibiting dual mandates.
	Of course, it is possible for the Standing Order to be amended to achieve the same effect as the regulations so that Peers who are elected as MEPs are definitively prohibited from sitting and voting. However, the Government had to legislate to make changes to the membership of your Lordships' House in 1999, and that is some evidence that Standing Orders are not an appropriate vehicle for making these sorts of changes to the membership of the United Kingdom legislature.
	I do not like to disagree with the noble Lord, Lord Kingsland, but I have to argue that Standing Orders might not qualify as a legal rule under national law for the purposes of EU law. Our view is that allowing for the membership of members to be suspended through the House's Standing Orders would not amount to a change in the UK legal position for the purposes of determining whether we comply with the EU prohibition on dual mandates. Although your Lordships vote on the content of Standing Orders, they are not subject to the same procedures as primary and secondary legislation and are not scrutinised by the other place. Further, the courts have no jurisdiction over breach of Standing Orders.

Lord Kingsland: My Lords, I am sure that the noble Lord has this matter in mind as he speaks, but can I remind him that none of those strictures applies to constitutional conventions?

Lord Bach: My Lords, that is right, but in our view Standing Orders do not form part of the law of the United Kingdom. This is the important point of the debate—they would not be taken into account by the European authorities in determining whether we were compliant with EU law.

Lord Lester of Herne Hill: My Lords, is not the point in answer to the noble Lord, Lord Kingsland, that a constitutional convention is not a law because it is neither a common law decision binding nor is it a written rule in a statute? It therefore does not satisfy legal certainty and would not be regarded by a European lawyer as being law in the sense in which European law understands it, however much constitutional conventions are understood in our own system.

Lord Bach: My Lords—

Lord Kingsland: My Lords, I wonder whether the Minister will give way as I should like to respond to the noble Lord, Lord Lester. He is right that a constitutional convention is not a law, but nevertheless without constitutional conventions we could not be a member of the European Community as we would not be a democracy. Standing Orders at least, on the terms put forward by the noble Lord, Lord Lester, have the merit of being written down. That is why I argue that his approach to Standing Orders is completely undermined by my approach.

Lord Bach: My Lords, I think that the noble Lord, Lord Kingsland, was asking me the question. The noble Lord, Lord Lester, answered it admirably, if I may say so without seeking to flatter him unduly. We just have to disagree on this. The Government's view is that, arguably, Standing Orders would not be enough and would not be taken into account by the European authorities in determining whether we are compliant with EU law. That is our view.
	Far from imposing a new burden, the regulations before us today offer a concession to life Peers to take up office as MEPs, given that they would otherwise be barred from doing so. From a policy perspective, the Government's position is that life Peers should have the opportunity to take up such a mandate if that is their wish. It is a matter for them. Without these regulations they would not be able to do so. Our intention with these regulations was to provide a simple, pragmatic and interim solution to a specific and pressing problem. We want to deal with this issue in the context of Lords reform. Under any such reform it should at least be possible for Peers to resign their seats if they wish to do so.
	Let me say a word about hereditary Peers, which is one of the points that the noble Lord, Lord Norton of Louth, justifiably made about what he saw as defects. We have been asked why we have not treated hereditary Peers in the same way as life Peers, and have pointed out that in this House we are all equal—it is a House of Peers. But we are not all equal in how we have arrived in this House. Certain hereditary Peers, such as the noble Lord, Lord Trefgarne, sometimes tease the rest of us by suggesting that their means of arrival is superior to ours. The consequences for a hereditary Peer standing for the European Parliament would not be quite the same as the consequences for a life Peer doing so.
	The House of Lords Act 1999 provides that 90 hereditary Peers should be excepted from its effects, together with the two hereditary office holders. At the time the Act was passed, considerable stress was laid by the House on the point that 90 should be the guaranteed number, not the maximum. However, a vacancy can be caused only by a death. There can be no by-election unless there is a death. If the bar on sitting and voting that these regulations apply to life Peers were extended to hereditary Peers, the result would be that the number of hereditary Peers able to take part in the proceedings of the House could potentially be reduced below 90 for the whole period of the European parliamentary term of five years.
	Further, let us consider the circumstances in which the hereditary Peers came into the House. They took a deliberate decision to stand for election. They achieved their status at the expense of many others with whom they were in direct competition. There are well over 100 names on the list of Peers registered to stand in any election, and at the by-election last year to replace the late Lord Mowbray and Stourton there were 43 candidates. In these circumstances, it is not entirely proper to suggest that an excepted Peer, having been elected to this House, should be permitted to turn his back on it for up to five years at a time. If I was in any doubt about this line of argument, particularly about whether there would be any upset from hereditary Peers if their numbers were to be reduced in this way, all I have to do to convince myself that I am right is to remember the response of the noble Lord, Lord Trefgarne, just a few minutes ago when it was suggested that no one would really care if there were fewer than 90 hereditary Peers. That is why hereditary Peers are not included in this order.

Lord Norton of Louth: My Lords, I understand the point the Minister is advancing, but the force of his argument would apply to those who were elected to this House through the by-election option after these regulations take effect, or after the 2004 order is introduced. What about hereditary Peers elected to the House before 2004 who came in on the basis that they would be the equivalent of life Peers and who would not be aware that they would subsequently be excluded from seeking election to the European Parliament, if that was their wish?

Lord Bach: My Lords, perhaps I am being slow. I am missing the noble Lord's point. I would have thought that the comments I have made about hereditary Peers apply to all hereditary Peers, all of whom were elected after the 1999 Act, unless they were elected in a by-election.

Lord Norton of Louth: My Lords, I shall seek to explain. If they were elected before 2004, they came in on the same basis as a life Peer coming in during the same period. One accepts a life peerage and the fact of election is irrelevant in this context. All the Members who came into this House before 2004 accepted that once they were here, they would be here for life. They were not aware that if subsequently they were contemplating standing for election to the European Parliament they would be barred from doing that. One can argue that once the ban on the dual mandate is introduced, anybody entering the House will be aware that the ban took effect on them, and there is justification for excluding them, which was at the heart of the noble Lord's argument.

Lord Bach: My Lords, I rely on the compromise that was reached between my noble and learned friend Lord Irvine and the noble Marquess, Lord Salisbury, then Viscount Cranborne. It made the number of hereditary Peers 90, plus the two. The House itself, not just hereditary Peers, having agreed that compromise might well not be very pleased to find that that number of hereditary Peers goes down by virtue of hereditary Peers being included in this order.

Lord Trefgarne: My Lords, whatever may be the merits of the points made by the noble Lord, the fact is that hereditary Peers are being treated differently from life Peers—and, as I mentioned earlier, so are Bishops. Does that not mean that the Bill is hybrid and should there not therefore be some other procedure?

Lord Bach: My Lords, it cannot be a hybrid order, because this is a negative resolution. I make it absolutely clear that we did not choose it to be a negative resolution because otherwise the issue of hybridity would arise. It is a negative resolution because, having taken advice on the issue from the Joint Committee on Statutory Instruments, it was believed that this was a proper negative resolution, especially bearing in mind the debate that had taken place in January 2004, when it was made clear by my noble friend Lord Evans of Temple Guiting, on behalf of the Government, that we intended to introduce the ability for Members to join other legislatures.
	In summary, the Government have proposed the regulations in response to a pressing need. At least one life Peer has expressed a wish to stand at the European parliamentary elections next year but cannot do so unless the regulations are in place. In proposing the regulations for life Peers—I hope that I have made the necessary apology for the way in which this has taken place—we have taken what I would describe as a minimalist and practical approach to ensure that all mechanisms are in place well in time for those elections in accordance with best electoral administrative practice. I emphasise that it is our long-term intention that all Members of the House of Lords will be able to resign from the House to become Members of the European Parliament if they so wish. Therefore, we see the regulations as no more than a temporary measure pending the introduction and implementation of a wider reform package for this House.
	I hope that the explanation that I have given has allayed some noble Lords' concerns.

Lord Lester of Herne Hill: My Lords, the note explains that because this is a negative resolution, no statement of compatibility with the European convention is needed. Of course that is correct, but can the Minister confirm to the House that he is satisfied that no breach or threatened breach of the convention is involved in passing the regulations into law?

Lord Bach: Yes, I can, my Lords.

Lord Norton of Louth: My Lords, I apologise if I have missed something that the Minister said—he may feel that it was encompassed in his generic apology at the beginning—but has he addressed the drafting deficiencies of Regulation 4?

Lord Bach: My Lords, I shall try to explain Regulation 4—I know that the House is sitting late tonight. I think that Regulation 4(1)(b) exercised the noble Lord in particular; he said that it is unnecessary. It follows the model in existing primary legislation, such as the Insolvency Act 1986. That is how we approached the writ of summons issue, rather than in the way that it was dealt with in 2005. That is why the wording appears as it does. We are happy to take that away to consider whether it was appropriate.
	On Regulation 4(2) and whether there is a gap in the writ of summons disqualification: yes, there clearly is. A Peer who is an MEP would continue to hold the writ of summons in the time, which there may well be, before the next Parliament, but the regulations follows the model in other legislation—again I go back to the Insolvency Act 1986, where exactly the same thing applies. If someone is disqualified under that Act, their writ of summons still exists but they are left in the same position as would be an MEP under the regulations. It would be excessively technical to try to cater for this short period. The same issue could arise if a Peer was made bankrupt and there was still some time before the next Parliament.
	Having heard my arguments, I am sure that the noble Lord, Lord Trefgarne, will think very carefully about what to do next. My advice is that he should not test the opinion of the House.

Lord Trefgarne: My Lords, I congratulate the noble Lord, Lord Bach, on his debut. If ever there was a case of making bricks without straw, this was it. If ever there was a case of a Minister having to play a rum pack of cards, this was it. I am grateful to every noble Lord who has contributed to the debate. The regulations clearly have a number of deficiencies that may yet come back to haunt the Government. In the mean time, I beg leave to withdraw the Motion.

Motion, by leave, withdrawn.

Lord Young of Norwood Green: My Lords, I beg to move that the House do now adjourn until 8.58 pm.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.51 to 8.58 pm.]

Planning Bill

House again in Committee.
	Clause 11 [Suspension pending review]:
	[Amendments Nos. 88 and 89 not moved.]
	Clause 11 agreed to.
	Clause 12 [Pre-commencement statements of policy, consultation etc.]:
	[Amendments Nos. 90 to 97 not moved.]
	Clause 12 agreed to.
	Clause 13 [Legal challenges relating to national policy statements]:

Lord Dixon-Smith: moved Amendment No. 98:
	Clause 13, page 6, line 31, leave out "6" and insert "12"

Lord Dixon-Smith: This is a large group but the amendments are relatively small and we can deal with them simply and, I hope, fairly expeditiously. The amendments are designed to extend the period in which a claim for judicial review can be brought. It is a similar argument to that on 28 days and 42 days. We are suggesting that we move from 48 days to 98 days, or 12 weeks. Sometimes legal issues can be difficult. At this stage, the decision on whether to bring a judicial review, if it is to be brought at all—the probability is that it will not be—is something for which we ought to allow time.
	Other amendments in the group would ensure that the time limit ran from the date of publication rather than the date of the Secretary of State's decision. If the Secretary of State reaches a decision on a Friday afternoon, the publication of that decision may well not be until Monday. Although three days may seem insignificant, my experience suggests that lawyers could argue about three days for three weeks or even three months. The date of publication ought to be the appropriate point at which to start the clock. These are fairly simple amendments and I beg to move.

Baroness Hamwee: I have tabled a number of amendments in this group. They pretty much make the same point as that made in those tabled by the noble Lord, Lord Dixon-Smith. Publication by definition comes later than the decision. It may be only half an hour or, as he says, it may be three days. I might be capable of arguing the issue for three days, but probably not for three weeks. I have taken more than three seconds to speak, but my speech is closer to three seconds than to anything else.

Lord Cameron of Dillington: Amendments Nos. 98, 99 and 105 concern the 12-week notice for judicial review. On the one side this Bill is about speeding up the processes, while on the other side it is about the normal civil procedure for filing for judicial review, which provides a maximum time limit of 12 weeks—although the Civil Procedure Rules state that that can be shortened by specific enactments, which is what we have here. We need to think afresh and work out what is reasonable in the circumstances.
	I speak reluctantly on these amendments because I have added my name to others that seek to stretch deadlines. An applicant serving a notice on a landowner or a local authority and expecting them to provide a full and considered response in 28 days seems unreasonable, as is the provision in Clause 50, with a farmer having only 14 days in which to respond; he might well be on his holidays.
	However, parties trying to establish a judicial review will have been following the debate for several months. They will almost certainly have been involved in consultation and will have followed the parliamentary debate—eventually, it is to be hoped, in both Houses—and the shape of the national policy statement will be obvious to them long before it is published. The difference between this and the other time limit changes, which I support, lies in the fact that the claim form to be filed, as I understand it—lawyers may correct me—merely has to set out the grounds for the review; it does not have to state the whole case in writing. The supplicant can also add to it at a later date and can, in special circumstances, even ask the court for an extension to the time limit.
	While I can see both sides of the argument, I share with the noble Lord, Lord Jenkin, a distaste for the currently overused judicial review process and the uncertainty that it might create in this instance. I fear that I am not able to support the extension of time limits from six weeks to 12.

Baroness Andrews: I am grateful to noble Lords for explaining their concerns and I hope to reassure them that there is a good reason for doing this as we have.
	Amendments Nos. 98, 99, 101, 105, 109 and 112 would increase the time in which a claim for judicial review can be commenced in respect of national policy statements from six weeks to 12. Noble Lords have argued that six weeks is an unreasonably short time in which to require someone who wishes to challenge an NPS to file the appropriate claim form. I am well aware that the usual rule in judicial reviews is that claims must be filed promptly and, in any case, not later than three months after the grounds to make a claim first arose. As the noble Lord, Lord Cameron, suggested, we are trying to create in the Bill a process that is fast but certainly not overhasty. We need to introduce focus and discipline into the process but, essentially, this is a fair regime. It provides people with an opportunity to challenge national policy statements in the courts but it ensures also that that does not cause unnecessary delay.
	It is important to remember the context in which this will work. The processes for drawing up, designating and reviewing national policy statements will be clear, open and undertaken in full public view. NPSs and amendments—unless, in the view of the Secretary of State, a proposed amendment does not materially affect the policy—will be subject to public consultation, an appraisal of sustainability and parliamentary scrutiny. So, within that, we have created a robust and transparent process. On those grounds, it is reasonable in such cases to expect that the claim forms should and could be filed within six weeks.
	I also argue that this is not an entirely new provision. A six-week period for commencing proceedings applies at present in the case of statutory challenges to the development plan under the Town and Country Planning Act 1990. So there is a useful precedent. Clause 13 strikes the right balance between the national interest and the interest of individuals who might want to challenge an NPS.
	All the other amendments in the group would ensure that the time limit for bringing a legal challenge runs from the date of publication of the Secretary of State's decision, which marks the end of the relevant administrative process. They argue that there should be greater clarity as to when the Secretary of State has made a decision in respect of these actions and that that point should be the publication of that decision. I am not sure that I agree with that in principle, but if the key concern is that there should be a clear announcement of a decision, I can give that assurance. I understand the noble Baroness's concerns that the Government should not make a decision that would affect people's rights to bring a legal challenge but not announce it. I can certainly reassure the Committee and place it on record that, where the Secretary of State makes a decision that could give rise to legal challenge under Clause 13, this will be announced. I hope that that satisfies both noble Lords and that the amendment will be withdrawn.

Lord Dixon-Smith: I am grateful to the noble Baroness for her reply and her assurance that, where the Government make a decision, it will be announced. It does not alter my marginal problem regarding a decision taken on a Friday with the possibility of an announcement not being made until Monday. I will need to study the noble Baroness's words with rather more care because, in such a situation, three days might be critical. I am grateful for the Minister's response. I know that she intends to be helpful and, with that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 99 to 114 not moved.]
	Clause 13 agreed to.
	Clause 14 [Nationally significant infrastructure projects: general]:

Lord Dixon-Smith: moved Amendment No. 115:
	Clause 14, page 7, line 30, after "above" insert "or below"

Lord Dixon-Smith: These are probing amendments which contain a number of technical questions. The Bill defines the situation vis-à-vis power lines and pipelines in a particular way, and that needs to be expanded. Amendment No. 115 would include electricity cables below ground as well as above. I accept entirely that undergrounding major electricity power lines is a very expensive operation, but the reality is that from time to time it is done, and done for very good environmental reasons. I would not want a situation in which power lines could not be put underground because they had not been included in the Bill. Putting something underground may well not require planning permission, but that would be remarkable and might tempt a lot of landowners to start building subterranean houses, which I am sure is not the Bill's intention. We need to debate that.
	Amendment No. 117A deals with gas pipelines that do not carry what we consider to be gas, such as natural gas, but carbon dioxide. There is the question of whether gas lines carrying carbon dioxide are peripheral to the power station if they are involved in the process of carbon sequestration. Everybody hopes that carbon sequestration will work; they see it as a lifebelt for the coal industry. My view is that we do not know the cost of carbon sequestration; still less do we know the energy penalty of placing carbon sequestration on a coal-fired power station.
	These are real questions. If we are to continue with coal-fired power stations in any numbers, while a pipeline may initially be peripheral to the planning application for the power station, we may in the end need to consider the construction of a carbon dioxide grid. That will be a major operation and we ought to think about it at this stage.
	Concomitant to this line of thought is the suggestion that one of the best places to sequester carbon dioxide is under the North Sea in the holes from which we have extracted natural gas or oil. Indeed, it might improve the reclamation rate from oil or gas fields as a consequence. However, if we are to do that, will it have any impact on the marine Bill, which we have not yet seen? I do not know the answer. I hope that the Minister will be able to reassure us.
	Amendment No. 125 deals with the reuse of heat, which currently flows from power stations into the atmosphere or into the sea. One of the interesting things about the installation of the Bradwell power station 30 years ago was that, within a short period, the timber quay which had been built out into the Blackwater estuary was attacked by the Teredo worm. The Teredo worm is a tropical problem, but the heat outfalls from the Bradwell power station had raised the local temperature in the estuary to the point where the Teredo worm could flourish. That is potential problem which we need to think about. The disposal of waste heat is a very real issue. I said enough about it earlier not to need to repeat how we might need to think about using it, but I am confident that it will be a major issue in the future and we need to think about it at this stage.
	Amendment No. 133 is simple and straightforward, dealing with the issue of connectors which are not in the United Kingdom. The Bill adequately covers Wales and Scotland—it does not cover Northern Ireland; I do not think that we have any direct connectors to Northern Ireland at the moment, but I suspect that we ought to cover it in the Bill, because, if we do not, it is as sure as night follows day that, about 10 years from now, somebody will produce a connector to Northern Ireland. We ought to think about that. We have connectors to France, to the Low Countries for gas, and it is possible that we will have direct connectors from Norway to England. The Bill does not provide for that. These are developments which one cannot predict, but they might happen. We need to give careful thought to the possibility, because, if we do not, it is again as sure as night follows day that somebody will at some point raise the issue and it will be an embarrassment. There is again the question of the relationship with the marine Bill, which is yet to come. I look forward to hearing what the Minister has to say on this broad spectrum of subjects.

Lord Brooke of Sutton Mandeville: Ministers in Northern Ireland come and go and it is a long time since I was there, but certainly when I was there I called on the Scottish commissioner in Brussels to discuss what view the EU would take of a connector to Northern Ireland. I should be very surprised indeed if it had not arrived in the intervening period.

Lord Berkeley: I have one amendment in this group, which would reduce the limit size for generating stations onshore from 50 minimum to 30 minimum megawatts. It is probably a much better figure, although we can debate those numbers all night and go through all the different statistics. I know that my noble friend has tabled some amendments. It depends on whether one believes that having a lower figure would make it easier to get planning permission through this route than another one. Probably many of the amendments in this grouping reflect that. But I am sure that we can talk about this afterwards, outside the Committee.
	I have one question for my noble friend on the gas transporter pipelines in the government amendments. It is always important to try to understand what is meant in legislation like this. How do we understand the construction of a pipeline by a gas transporter? A gas transporter to me is something that transports gas; it could be a ship, a lorry or a train. The only way I know of constructing a pipeline is either by digging a trench and welding the bits of pipe together and putting it back in or, occasionally, by something called thrust boring, whereby you can build pipelines under rivers. You start to drill on one side of it and the drill can go round corners and it is quite clever. But I would not have called that drill a gas transporter. When my noble friend comes to wind up on this mammoth number of small amendments, perhaps he will explain what a gas transporter is and how it builds a pipeline.

Lord Taylor of Holbeach: I am responsible for Amendments Nos. 122 and 126, which are designed to address the offshore infrastructure, as has been mentioned by previous Members of the Committee. The Minister, with his dual ministerial function, is probably more aware than anyone of the connection of this Bill with the Climate Change Bill and the Energy Bill. My noble friend Lord Dixon-Smith has indicated that there is a fourth Bill connected with this—the forthcoming marine Bill, which is at draft stage. It makes provisions for offshore infrastructure, so I seek through my amendments to probe the Minister on how this Bill will interact with the forthcoming marine Bill.
	My concern is that, as this current Bill is presented, it ignores the advent of the forthcoming Bill and the creation of the Marine Management Organisation. As the World Wildlife Fund and the Royal Society for the Protection of Birds pointed out in their excellent brief, this Bill gives the Infrastructure Planning Commission the power to determine proposals in the marine environment—notably offshore generating stations of more than 100 megawatts in Clause 15 and airports in Clause 22. That is really inappropriate in light of the fact that we have a draft marine Bill, which actually has provision for a marine spatial planning system and a specialist marine management organisation—the MMO—to simplify the plethora of regulatory regimes in the marine environment.
	Given that the IPC has a role in the marine environment running counter to the Government's stated aim of generating a strategic overview and reducing complexity at sea through marine planning, how are these two things reconciled by the Minister? Within the marine environment, the MMO should surely make all decisions on behalf of the Secretary of State acting with Welsh Ministers when they are involved because of the devolved powers to the coastal regions adjacent to Wales.
	These two amendments would mean that the decision-maker remained the Secretary of State—or the Secretary of State in collaboration with Welsh Ministers—until the MMO was created through the marine Bill. To my mind, that is a sensible arrangement and I hope that the noble Lord will agree that there is an imperfection in the way that the current Bill is drafted in that it fails to recognise where we will be taking this legislation when the marine Bill turns up.

Lord Greaves: I support the words of the noble Lord, Lord Taylor of Holbeach, about the forthcoming marine Bill and the way in which this legislation—indeed, the whole of the planning system—will link in with and be changed by the provisions of that Bill, which we are expecting to see in the next Session. It will be interesting to hear what the Government have to say about this. It may well be that some more thought is needed before the Bill is finally passed in this House.

Lord Reay: I am responsible for Amendment No. 24, which would raise the threshold for an onshore wind power station—or wind farm as they are widely although quite inexplicably known—from 50 to 300 megawatts. It is true that at present there are few onshore planning applications in the pipeline for onshore wind power stations of more than 50 megawatts. That would require, for example, 25 turbines of 2 megawatts each. However, the threshold is not out of reach for developers as turbines increase in power all the time and the incentive would be there for developers both to increase the size of turbines and increase the number of them per application. That provides an even more horrible prospect for the benighted denizens of and visitors to our beautiful upland landscapes.
	Ideally, I would have liked wind power stations to have been excluded from the Bill altogether, but as they are not mentioned by name it is not easy to see how that could have been done. The threshold of 50 megawatts applies to all onshore generating power stations. Of course, that is a ludicrously low figure in relation to gas, coal-fired or nuclear power stations, which typically range from 800 megawatts upwards to 2,000 or more megawatts per station. Nor was it necessary for that threshold to be set so low to catch the Severn barrage. It could have been set so low only in order to catch wind power stations—if not many of them today, perhaps more tomorrow and more still if the amendment of the noble Lord, Lord Berkeley, were adopted, which I think was his purpose.
	In doing this, the Government are abusing the purpose of the Bill. The purpose of the Bill is to deal with nationally significant infrastructure projects. Indeed, that is the title of this clause. How could they conceivably justify calling a 50 megawatt wind farm a nationally significant project? I should like the Ministers on the Front Bench opposite to answer that question directly this evening.
	A wind power station or wind farm of 50 megawatt installed capacity, which is what capacity means in the Bill because it can operate only part of the time owing to the variability of the wind, has on average in this country a load factor of 27 per cent. That means that a 50 megawatt power station as described in the Bill can develop only about 15 megawatts of power over the year. A thermal power station can operate at 80 per cent plus of capacity and so produce 50 to 100 times the amount of electricity of a 50 megawatt wind power station. How can they be talked about in the same breath?
	My amendment raises the threshold by a factor of six. This would take account of the load factor—it is misleading in the case of wind power and talking in terms of the installed factor because of the huge difference between them—and doubles that. This still does not take it anything like into the same league as a modern thermal power station, but would raise it substantially for all that.

Lord Jenkin of Roding: I shall make two points, the first of which I have discussed with my noble friend Lord Dixon-Smith. Amendment No. 125, looking at the definition of a generating station, would add a requirement that it should be capable of generating heat. This would clearly be highly desirable wherever it was feasible. However, because many of the generating stations that would fall within the purview of the Bill will be nuclear power stations—I do not think that anybody is contemplating putting a nuclear power station into the old Battersea site—they will be remote. It is now well recognised that to try to use the heat from a such a power station may be wholly impractical. I have been given the example of when there was an application for a combined cycle gas turbine at West Burton. It was made clear that while the Government certainly wanted to see if there was a possibility of CHP and the use of heat, the conclusion was:
	"The Secretary of State is of the view that the Company has seriously explored the possibility of CHP and agrees from the evidence presented that there is no existing heat load within a reasonable distance of the application site to justify amending the proposal to be CHP".
	The point forcefully made to me on behalf of the Nuclear Industry Association is that if my noble friend's amendment were to be added to the Bill, however much one might recognise the desirability of promoting the use of waste heat, it would actually kill off the prospect of people investing in new nuclear plants. As I say, I have discussed this with my noble friend and he understands the problem.
	While I am on my feet, in order not to have a separate debate on whether Clause 14 shall stand part of the Bill, I raise the question of nuclear waste. I discussed this briefly with the Minister the other day and she kindly arranged for me to have an excellent note on it. I was told that the phrase "hazardous waste" at the bottom of the list does not include nuclear waste. I accept that. However, the note says:
	"Whilst not having yet taken a final decision, Government is currently inclined to look towards applying the new system in the Planning Bill, and believes that the new arrangement could assist in the delivery of agreements with local communities".
	It goes on to outline the consequences of that. When the Minister replies, it would be helpful if she could give a slightly fuller explanation of the factors leading Ministers to consider the possibility of using the Bill to deal with a huge project: the underground repository for hazardous nuclear waste. After all, there is a whole process going forward under the Managing Radioactive Waste Safely programme for developing a volunteering approach so that some local community could offer to host the waste.
	Although I am extremely grateful for the note that I received from the noble Baroness's department, it seems to me at first sight that there is a considerable difference in the whole process and procedure that would be necessary for using what is envisaged in the existing radioactive waste policy and what would be involved if these matters had to come under the Infrastructure Planning Commission. If it is not possible to answer that question, I should be grateful if somebody could write to me and spell it out. Clause 14(1)(o) refers to,
	"the construction or alteration of a hazardous waste facility".
	At first sight that could refer to a nuclear waste facility. Apparently it does not, but there is a possibility that it might do. I should like that to be explained in correspondence if it cannot be done tonight.

Lord Hunt of Kings Heath: Having listened to many hours of debate it is a great pleasure to discuss a very important part of the Bill, which sets the thresholds for the new national arrangements. I shall speak to a number of the government amendments and then address the other amendments in the group.
	The first set of government amendments relates to the introduction of a new category of project into the definition of "nationally significant infrastructure project"; specifically, major pipelines constructed by a licensed "gas transporter". My noble friend Lord Berkeley rightly asked me to define what that means. My understanding is that a gas transporter is a holder of a gas transporter licence issued under the Gas Act 1986, as amended. The Gas Act requires any person who conveys gas to certain—in practice, nearly all—premises in Great Britain, or into a pipeline of another gas transporter, either to hold a gas transporter licence or to be covered by an exemption from the requirement to hold a gas transporter licence. I should make it clear to my noble friend that the main gas transporter is National Grid Gas, which owns and operates the national transportation system for gas in Great Britain. The owners and operators of the gas distribution networks in Great Britain also hold gas transporter licences. The three independent distribution networks in addition to National Grid Gas are Scotia Gas Networks, Wales & West Utilities and Northern Gas Networks. I hope that helps my noble friend.
	Government Amendment No. 131 inserts a new clause that sets out the conditions for when such a pipeline project will be considered a nationally significant infrastructure project, and so be determined by the IPC. The pipeline must be wholly or partly in England, must be more than 800mm in diameter and more than 40km in length; or the construction is likely to have a significant effect on the environment. The proposed pipeline will have a design operating pressure of more than 7 bar gauge and it must be expected to supply at least 50,000 customers.
	Government Amendment No. 116 updates Clause 14 to reflect the new category of project. Government Amendments Nos. 117, 132, 134, 169, 289, 336, 402, 403 and 459 are consequential amendments to ensure that the existing pipeline provisions do not unintentionally apply to the new clause. This is important as these provisions extend to Wales and, for cross-border oil and gas pipelines, Scotland.
	Amendments Nos. 130, 394, 404 and 455 are further changes to tidy up the Bill's drafting, as we would otherwise need to define "gas transporter" in a large number of clauses throughout the Bill. Instead the term is now defined in Clause 220.
	The Government consider gas importation, storage and transmission to be key components of this country's infrastructure. This is already reflected in the range of projects set out in Clause 14. Pipelines constructed by a gas transporter, while mentioned in the planning White Paper were, however, omitted. This was because this type of project currently benefits from permitted development rights and we did not feel it necessary to include them in the new regime. However, in the other place it was suggested that gas transporter pipelines ought to be included in the new regime as they are critical to the transport of national gas supplies and many of the larger pipelines still need consent from the Secretary of State for other matters such as environmental impact assessment and other ancillary works along the pipeline.
	Including those projects in the new regime would eliminate the need for multiple consents across different decision-makers, which is consistent with the whole intent of the Bill. My colleague Ministers examined this matter over the summer, including in discussions with industry, and we now bring to the Committee the proposal that large gas transporter pipelines should be included in the new regime. The threshold established through Amendment No. 131 will ensure that only the most significant projects are captured. In the light of the decline of North Sea gas production and the increasing dependence on imports, I hope that noble Lords will agree that those projects are of national significance and should be included in the new regime.
	I understand that in previous debates in your Lordships' House and in the other place on the Bill, there have been concerns over what has been described as the "mission creep" of the IPC. I hope therefore that noble Lords and Members of the other place will be reassured by the Government's other amendments in Committee, which aim to reduce the IPC's caseload. In particular, we are removing the less complex electricity line cases via Amendment No. 129, which I will come to now.
	Clause 16 sets out when the installation of an electric line above ground will be a nationally significant infrastructure project; that is, projects with a nominal voltage exceeding 20 kilovolts. That was set to be consistent with the Electricity Act 1989. During consultation on the planning White Paper, the Government invited views on whether a line could be drawn between national and local electricity line projects. As responses to this question did not suggest any specific alternatives, the Government proposed at the introduction of the Planning Bill that all current electricity line cases be transferred to the IPC.
	The Government have, however, listened to concerns raised by stakeholders and in debate in the other place. As a result, the Government feel that it would be appropriate to raise to 132 kilovolts the threshold for when an electricity line project will be considered by the IPC. Amendment No. 129 therefore changes Clause 16 so that the only overhead line projects that will constitute a nationally significant infrastructure project for the purpose of the Bill are those relating to the development of long-distance transmission lines and the very largest distribution lines. We hope that the amendment goes a long way to addressing some of the concerns that have been expressed and will ensure that the IPC deals only with those electricity lines that are of national significance.

Lord Jenkin of Roding: I am most grateful to the noble Lord, and I welcome him to the energy Dispatch Box and wish him well.
	Am I misunderstanding something? If this new procedure is intended to be a signal improvement and acceleration of anything that might have been possible under the old procedure, why is it that people seem to want to escape the new system by getting themselves below the threshold? I find myself deeply puzzled by that. One would have thought that if this was a new procedure that was going to accelerate decisions, people would want to come into it. As my noble friend Lord Reay said, and as the Minister has been saying, it appears that people want to get out of it. Have I misunderstood something?

Lord Hunt of Kings Heath: It is a great pleasure to reply to the noble Lord, whose career I have followed with great interest over many years since we debated the health service a very long time ago, when he was Secretary of State for Health.
	That is an understandable question, though I am slightly surprised—although I have not taken part in previous debates—since I understand that there has been some concern about whether the remit of the IPC will be too large and it would deal with too many projects. There has been concern about whether the workload would be so great that in fact it might be swamped by applications, which would mean that it would not be able to focus on what must be considered nationally significant projects.

Lord Jenkin of Roding: That was extremely helpful, but it indicates that the change in threshold is more for the benefit of the IPC and the system than it is necessarily for the benefit of the promoter. One remembers the case of the Yorkshire transmission line, when 10 years elapsed between the application and when the line was finally built. One would have thought, therefore, that people would have said, "For goodness' sake let us have this new procedure to avoid that sort of thing". However, if the change in threshold is intended not to crowd out the whole process in the hands of the IPC, I can understand that. Maybe that is the explanation. I am most grateful to the noble Lord.

Lord Hunt of Kings Heath: Yes, that is, I think, the explanation. I move on to amendments moved or spoken to by other noble Lords. Amendment No. 115 of the noble Lord, Lord Dixon-Smith, seeks to determine the position of underground electricity lines. My understanding is that they benefit from permitted development rights and are, therefore, not included in the scope of the Bill. However, I reassure the noble Lord that the IPC can require sections of a proposed overground electricity line project to be constructed underground if there are strong reasons for doing that.
	The noble Lord made some good points about the desirability sometimes of underground lines, but reflected on their cost, which is huge. He may also know that the ecological balance is not entirely clear. My understanding is that for underground lines to match to performance of overhead lines, four separate trenches have to be built or, perhaps more appropriately, dug. That can disturb sensitive habitats and damage archaeological heritage. There is a debate about that issue, but the position is covered by permitted development rights.
	The noble Lord asked an extremely interesting question about electricity lines to France, know as interconnectors, which allow us to obtain electricity from the French grid and vice versa. We had a fascinating debate about Northern Ireland. My understanding is that the position with France would be the same as it is for Northern Ireland: lines that were above ground would need consent under the Electricity Act 1989, but that consent would transfer to the IPC if the threshold was met. To the extent that interconnectors are on or under the sea-bed, they will need consent under the Coast Protection Act. Under the provisions of the draft Marine Bill, marine licences would replace those consents and will be dealt with by the proposed Marine Management Organisation. I shall come later to how that organisation will relate to this Bill, because it is of considerable interest to noble Lords and, indeed, to me, who will presumably have the pleasure of piloting the Marine Bill, when it is ready, through your Lordships' House.
	The noble Lord, Lord Dixon-Smith, raised an important point on pipelines for the transmission of carbon dioxide. He will be aware that we are moving to a higher dependence on gas imports and that is why we have included various onshore gas supply infrastructures in the Bill. Increasing dependence on imports means a requirement for additional offshore gas supply infrastructure. Existing gas import pipelines from Norway, Belgium and the Netherlands need consent under the Petroleum Act. Innovative offshore gas supply infrastructures, including the offshore storage of gas and the unloading of liquid natural gas tankers, is addressed through provisions in the Energy Bill.
	Carbon capture and storage technology is still evolving, although one has hopes for, and has expectations of, its potential for the very reason that the noble Lord mentioned. Obviously, without knowing what form this might take, it is difficult to be definitive about what pipes might be used to transport carbon dioxide. Were carbon capture and storage to come forward as part of a generating station application in the future, we think that it could be included as an associated work to the power station application. I believe that the provisions relating to associated works and the guidance on that to be given by the Secretary of State are set out in Clause 111.
	The noble Lord then went on to ask whether a national CCS pipeline network would be developed. The advice I have received is that it would be too expensive to be treated as an associated work to a generating station. However, a CCS pipeline might sometimes qualify in its own right under Clause 20. "Pipeline" is defined in Section 65 of the Pipe-lines Act 1962 as a pipe for the conveyance of anything other than air, water, water vapour or steam.
	Clause 34 allows the Secretary of State to direct that certain applications be referred to the IPC if she considers the project to be of national significance. As the planning White Paper explains, a key reason for introducing this power was precisely to ensure that we were able to deal with changing technology, such as for carbon capture and storage.
	In addition, Clause 14 allows the Secretary of State to add a new type of project to the list of nationally significant infrastructure projects so long as it falls within certain fields and in certain areas. I note that we will shortly be debating amendments which seek to take that discretion away. However, I hope that noble Lords will bear in mind that for the very reason that we cannot always anticipate new technology, we need to have provision in the Bill to allow for the legislative framework to apply to new situations. Having said that, I must not anticipate the exciting debate that we will have shortly on that matter. I consider it to be one of the most important provisions in the Bill in that it provides the basis for dealing with future technology changes which will be to the benefit of the national interest.
	Amendments Nos. 122, 126 and 127 deal with offshore generating stations. Under the Bill, the IPC would be responsible for determining applications for onshore generating stations with a capacity of more than 50 megawatts and offshore generating stations with a capacity of more than 100 megawatts. For onshore projects, we have set the threshold at 50 megawatts to match the provision in Section 36 of the Electricity Act 1989. We proposed a threshold of 100 megawatts for offshore projects because they tend to be larger and have a less significant impact on people than those on land. We think it is sensible that the threshold for offshore projects which will be dealt with by the IPC is set at a higher level compared with onshore projects. The noble Lord, Lord Taylor—

Lord Woolmer of Leeds: My noble friend may or may not know that I agreed with his noble friend the Minister that this evening I would not move or speak to Amendment No. 127, which dealt with the very point that is now asserted to be the Government's position. I should be most grateful if he could reassure me that I can have substantive discussions with his colleague the Minister on this and that his mind is not totally made up; otherwise, I fear that I shall probably need to speak to my amendment.

Lord Hunt of Kings Heath: That is a very fair intervention from my noble friend. I can certainly promise him long and interesting discussions. I cannot go any further than that in giving any commitment but I shall certainly be ever eager to talk to him about this matter between Committee and Report.
	I turn to the noble Lord, Lord Taylor, who raised some interesting points regarding offshore issues and the future relationship of the Marine Management Organisation and the draft Bill. On the general principle of including offshore consents within the Bill there is an unprecedented amount of investment in our infrastructure required in the next decade or so, and we think that offshore renewables will play an important part. I understand that industry believes that 40 to 45 new large offshore wind farms will be needed within the next eight to 10 years to meet those challenges. We think that the IPC will be integral to achieving these goals for major offshore developments. That raises the question of how that integrates with the work of the Marine Management Organisation and the Marine Bill. That is a fair question. The Government's intention is that offshore projects of 100 megawatts and below will be dealt with by the Marine Management Organisation, which is being set up under the proposed Marine Bill. That body will be the UK's strategic delivery body in the marine area.
	We believe that the MMO's role in marine environment matters is synonymous with the approach taken on land where local authorities will be taking decisions on smaller generating station projects. In addition, for energy developments under 100 megawatts the MMO will provide a one-stop shop single decision-making process similar to the IPC single consent regime. I understand that noble Lords have a number of points to make about the way in which this will work with the MMO regulation. I am happy to go through it in detail, or I can set it out in writing if noble Lords prefer.

Lord Taylor of Holbeach: I should be happy to see the Government's position in writing, but I hope that the Minister recognises that there is some inconsistency in setting up a body that is deliberately designed to manage the sea-bed and to have authority over all that happens on our offshore development, and then placing another body on top and saying that when it comes to really big schemes someone else will have the responsibility of being the strategic managers of such projects. Given that the two Bills are following closely on each other that may be a formula for tension and disaster in the sense that two departments will each be pushing an agenda, which could lead to a great deal of confusion—not in the Minister's case because he can represent both interests. But in Whitehall generally, I am not sure that the arrangement that the Government seek to put in place is durable. Will the Minister not only write to us but think again about this aspect of the Bill?

Baroness Hamwee: I am not intervening on the substance but it strikes me that if there is concern about possible confusion and tension between departments, the explanation on how this Bill will work with the forthcoming legislation should be on the record. I am often concerned that a letter, even if it goes to the Library, does not have the same status. I am sorry; I do not want to prolong things tonight.

Lord Reay: The Minister did not refer to my Amendment No. 124 on onshore wind farms, and he certainly did not answer my question.

Lord Hunt of Kings Heath: I am coming to that, but noble Lords would like me to say a little more about the Marine Management Organisation. I am in the unique role to ensure that the two departments work well together and it is my intention and the intention of both Secretaries of State to ensure that there is an integrated approach across government. I hope that this is not establishing potential conflict between the IPC and the MMO.
	As I have already said, we saw as more anomalous the relationship between the IPC for the very significant national projects that we want to be covered and the role of local authorities as planning authorities. The MMO will have to make a unique contribution to sustainable development and the integrated management of the sea. It will be guided by the UK marine policy statement. We expect the IPC to draw on the expertise of the MMO. The MMO can add additional conditions to an order granting development consent if new information comes to light and can even revoke consents if necessary. The MMO will be responsible for the monitoring and enforcement of IPC consents, and the Planning Bill guidance will detail the nature of the advice that will need to be given by the MMO to the IPC. My understanding is that there will also be a memorandum of understanding to formalise the arrangement. MMO enforcement officers will use Marine Bill powers to enforce the system.
	Thought has been given to ensuring that there is an integrated approach. I understand that when we come to debate the Marine Bill these matters will be fully debated and scrutinised, but I do not think that what is proposed in this Bill is inconsistent with the general framework of the Planning Bill or with the general structure of the IPC dealing with a smallish number of very significant national projects on an annual basis and the anomalous role of the local authority in terms of planning consents.
	I hope that I can reassure noble Lords on that and that I have said enough to read the general principles into the record. I am happy to write in even more detail to noble Lords if they would prefer it.
	I turn to—

Lord Greaves: What the Minister said depends on the IPC and MMO coming into existence contemporaneously. If the marine Bill were to be delayed, it would put a spoke in the whole thing. Is the Minister telling us that we are going to be discussing the marine Bill within months?

Lord Hunt of Kings Heath: The noble Lord, Lord Greaves, knows that I cannot respond to that question. I can say that my ministerial colleagues and I are anxious to see the marine Bill in Parliament as soon as possible when parliamentary time allows.
	I now turn to the question of onshore generating stations. My noble friend seeks to reduce the threshold from 50 megawatts to 30 megawatts and so bring more projects into the remit of the IPC. The noble Lord seeks to increase the threshold from 50 megawatts to 300 megawatts to reduce the number of projects. That suggests to me, on the government Front Bench, that we have the balance about right.

Lord Reay: The Minister is not answering my question. How does he justify describing a wind power project of 50 megawatts generating only 15 megawatts a year as a nationally significant infrastructure project?

Lord Hunt of Kings Heath: The noble Lord is anxious for me to respond, but he does not give me much time to get to the point. We reached the 50 megawatt limit because it was set in the Electricity Act 1989. It was originally intended to allow local generating stations, typically with a single gas turbine, to be consented below central government level while ensuring that nationally significant power was dealt with centrally. Although the advent of renewable energy technologies means that there is now a wider spread of generating station size, we think that the limit still provides a useful distinction. In wind farm terms, 50 megawatts is about 20 onshore turbines, which is enough to have a significant effect on the wider landscape.
	The noble Lord should consider how many renewable energy projects built in the past 15 years would have been large enough to qualify for decision-making by the Infrastructure Planning Commission under the Bill. My understanding is that only 6 per cent of the 1,999 megawatts of constructed renewable generating capacity in England and Wales would have been consented via the IPC had it been in existence. Obviously, whether we have the balance right is a matter for debate, but I suggest that those statistics show that only the top end of capacity in relation to onshore wind farms would be caught by the provisions in the Bill.
	The noble Lord, Lord Dixon-Smith, raised the interesting question of combined heat and power. I assure him that any generating station meeting the thresholds in the Bill will be considered by the IPC, including those that use combined heat and power. Although this is a new area for me, I have observed at Question Time that we are regularly treated, particularly by the noble Lord, Lord Ezra, to the potential of combined heat and power. We have taken steps to encourage the use of combined heat and power, including supporting measures to encourage the development of schemes and increased awareness of the opportunities for combined heat and power. However, in relation to generating stations, it is not always practical to fit this technology, as the noble Lord, Lord Jenkin, pointed out. That is why in our guidance to developers we want them to maximise the use of combined heat and power, but we do not think that it would be right to require it.
	In his last question, the noble Lord, Lord Jenkin, bowled the googly of hazardous waste, particularly in relation to nuclear waste. He kindly invited me to write to him. I accept that kind offer. For the sake of the Committee, perhaps I should read the extract that the noble Lord mentioned. It says:
	"Hazardous waste can arise from a wide range of materials, from chemical residues from industrial processes to everyday items such as televisions and car batteries".
	It does not include radioactive waste. Because hazardous waste has the potential to cause greater harm to the environment and to human health than other types of waste, its management is understandably subject to strict controls, which apply to any projects approved by the IPC.
	As noble Lords will know, four months ago we published the Managing Radioactive Waste Safely White Paper, which set out our framework for implementing the geological disposal of higher-activity radioactive waste. We have not yet taken a final decision, but the Government believe that the implementation of geological waste disposal would benefit from the Planning Bill reforms, which could assist the delivery of agreements with local communities. If the Government decided that that was the right approach and that it would be sensible to embrace radioactive waste within the work of the IPC, we would bring forward a statutory instrument to include it under Clause 14(3), the use of which we will debate shortly. The instrument would be subject to the affirmative resolution procedure. I reassure the noble Lord that no decision has been taken, but that is what was meant when he received the note about the potential use of the Bill.

Lord Jenkin of Roding: I am extremely grateful for that and I will be grateful to get the letter that the noble Lord has kindly offered. As these two processes appear to be heading in totally unrelated directions, if one is to use that amending power to bring radioactive waste into the Bill and within the purview of the IPC, the letter must set out how that would work and how it is consistent with the process set out in the Managing Radioactive Waste Safely White Paper to which he referred. That is what people will want to know, so it would be helpful if he could include that in the letter.

Lord Hunt of Kings Heath: That is a helpful comment, which sets out a challenge. My difficulty is that the Government have not taken a final decision, so this is a rather hypothetical debate. However, I will certainly write to the noble Lord and to other noble Lords who have taken part in this debate. I hope that I have responded to noble Lords' concerns on these matters and I commend the government amendments to the Committee.

The Earl of Caithness: Can the Minister help me? I might have missed it, but I am having difficulty finding Clause 14(1)(ea), to which his Amendment No. 131 refers.

Lord Hunt of Kings Heath: That was a very friendly intervention, if I may say so.

Lord Berkeley: I refer my noble friend to Amendment No. 116.

Lord Hunt of Kings Heath: That was an even more helpful intervention. Another amendment in the group, Amendment No. 116, proposes new paragraph (ea):
	"the construction of a pipe-line by a gas transporter".
	I hope that, with the help of my noble friend, that answers the point satisfactorily.

Lord Dixon-Smith: We have had a full discussion about major infrastructure projects in a limited number of fields: gas, carbon dioxide and thresholds for wind farms. My noble friend Lord Jenkin got into some nuclear waste amendments. We have other waste amendments to consider later that do not cover that issue but which would have been the point at which I raised the question of nuclear waste.
	Finally, we had the debut of the noble Lord, Lord Hunt, on this subject. He has dealt with our and the Government's amendments in great detail and we will have to study with immense care what he has said. I think that we have the answers that we want, although he raised a number of questions in his remarks that we will need to think about. However, he has been enormously helpful. We have certainly got explanations on the main points of our concern. For that, I am immensely grateful and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: moved Amendments Nos. 116 and 117:
	Clause 14, page 7, line 33, at end insert—
	"(ea) the construction of a pipe-line by a gas transporter;"
	Clause 14, page 7, line 34, at end insert "other than by a gas transporter"
	On Question, amendments agreed to.
	[Amendment No. 117A not moved.]

Lord Dixon-Smith: moved Amendment No. 117B:
	Clause 14, page 7, line 35, leave out paragraph (g)

Lord Dixon-Smith: This group of amendments, including Amendment No. 117B and the Question whether Clause 21 shall stand part, was inspired by the Local Government Association. The problem with the highways definition of what is appropriate as national infrastructure is that it is too narrow, too limited and perhaps not appropriate. Roads where the Government are the highways authority are not necessarily of national significance. Some of the projects undertaken on those roads are certainly not of national significance. When one qualifies that, there are questions as to whether the definition is sufficiently wide, but I shall come to that later.
	The Local Government Association is particularly concerned about this definition. Amendment No. 117B would introduce a new clause to allow highway projects whose impact is sub-national to be devolved to a council or a group of councils. The projects may be on roads where the Secretary of State is the highway authority, but very often the impact of projects on those roads is essentially sub-regional. Obviously, the Secretary of State would still have the power to designate a highway application as a national infrastructure project under Clause 34, but that would probably remove some of the projects from the Infrastructure Planning Commission and put them back into the normal planning system, which is where the real concern of the Local Government Association lies. It is concerned that this expeditious, but slightly more remote, methodology is inappropriate for dealing with more local projects.
	Amendment Nos. 168A and 168B would deal with highway projects which were not so designated. Amendment No. 168A would remove the Secretary of State's ability to call in highway applications, except in relation to national parks. Amendment No. 168B would enable the Secretary of State to require local authorities to form joint committees to deal with trans-boundary highway applications.
	The current drafting means that any scheme involving the construction, improvement or alteration of a road for which the Secretary of State is the highway authority falls automatically to the IPC. The Local Government Association does not accept that that is appropriate in all cases. We thought that this was worth, at the very least, taking a bit of the Minister's time—I am pleased to welcome him here to answer these questions—because the Local Government Association is rightly the defender of local interest.
	Amendment No. 134A deals with the problem in a different way. It puts in an arbitrary cost limit below which a project might be considered local and above which one would consider it to be national. That would have the virtue of simplicity and would not impose the sort of administrative procedures which the previous amendments imply. It might be considered that the figure of £250 million is wrong, but the amendment was tabled with the intention of trying to provide a simpler way of defining a national project.
	I gave notice to the noble Baroness that I intended to raise another issue in relation to these highway projects which seems to have escaped the scope of the Bill altogether, and that is Trans-European Road Network projects, which are designated by Brussels. I have to declare a marginal interest in that a TERN road runs through the middle of my farm, and which happens to be my main farm track. It is also the A120, a single-carriageway road that goes straight through one village. The traffic count is over 23,000 vehicles per day, which translates to one vehicle passing every five seconds 24/7. That is an extraordinary state of affairs. There is a project for a relief road, the price of which has risen to over £500 million for almost 10 miles of road. If there was ever a case of the best being the enemy of the good, this is it; but because it is not a national road, the improvement cost has to come out of the local budget. The regional budget for highways improvement is £100 million per annum. That road will never be built, and the people of the village will never get relief.
	The more important issue is this: the Trans-European Road Network is a Brussels designation and of course has nothing to do with our national policy, but these roads are supposed to provide better transport links across the continent of Europe. Of course we are not on the continent, but the route I refer to is supposed to link the Haven ports in the east of Essex with Ireland. That may sound amazing, but it is the purpose of the original designation. So we have a classification of infrastructure projects designated by Brussels of which we apparently take no notice. There is at least a question here of whether projects on TERN routes ought not to be national infrastructure projects. If that were the case, given the existing financial situation it would make not a ha'peth of difference to the timing of that necessary road improvement, but it might facilitate it if and when budgetary conditions eventually become easier. I beg to move.

Lord Greaves: I support the general thrust of the amendments moved by the noble Lord, Lord Dixon-Smith. Clause 21 is all-encompassing, certainly as far as the alteration of highways is concerned. Trunk roads, which are the responsibility of central government, are often little different from the highways that are the responsibility of the Highways Authority. Roads have been trunked and detrunked over the years, and in many areas ordinary roads are the responsibility of the Government. Clause 21 states that:
	"Highway-related development is within section 14(1)(g)",
	if the development is the construction, alteration or improvement of it. If it is the improvement of a highway, one of the conditions, set out in subsection (3)(c), is that it,
	"is likely to have a significant effect on the environment".
	That is a reasonable test. It refers to a "significant effect", and the word "significant" is important.
	However, the word "significant" does not apply to alterations. Subsection 4(c) simply states that,
	"the highway is to be altered for a purpose connected with a highway for which the Secretary of State is (or will be) the highway authority".
	The definition of "alteration" of a highway includes "improvement" of a highway, so there is some confusion. As the Bill stands, it seems that quite a large number of relatively small schemes would automatically be sent to the IPC. That is clearly not what is meant; otherwise, the IPC would be completely swamped by cases of relatively minor changes, alterations and improvements to highways.
	The Bill has been drafted with motorways in mind. The motorway where I live is a principal road, not a trunk road, but most motorways are trunk roads. The Bill was drafted with large-scale roads such as motorways and major dual carriageways in mind, not the relatively ordinary A-roads which constitute many trunk roads. The Government should look at this again to ensure that they do not put schemes before the IPC that ought not to be there.

Lord Adonis: I am glad at this late hour to be joining the Committee's deliberations as we come to the important provisions on the nation's transport infrastructure.
	Amendments Nos. 117B, 134A, 168A and 168B would remove highway developments from the scope of the new development consent system and would present an alternative way for highway schemes to receive consents of planning permission from a joint committee of local highways authorities. As the noble Lord, Lord Dixon-Smith, said, that proposal has been put forward by the Local Government Association. The amendments would oblige the Secretary of State to decide on a case-by-case basis which road schemes he believed should be decided by the IPC. The implication is that other road schemes are not of national significance and so should be decided by alternative means. Amendment No. 168B suggests the model of a joint committee of local highways authorities.
	The concern raised by these amendments is that there should be a proper measure of devolution in the consideration of road schemes. To meet this concern, my officials have been in contact with the Local Government Association over the past few months and the Government expect to consult soon—I hope later this year—on the possibility of devolving full decision-making powers on local highway schemes to a local level, which will go some way to meeting the concerns of the LGA.
	We have also listened carefully to LGA concerns on the Bill more generally, hence under the Bill local authorities have a strong role in the IPC process at pre-application stage and special roles at examination stage.
	Alterations and extensions to the strategic road network are matters of national significance, hence the threshold in Clause 21. Roads for which the Secretary of State is highway authority are strategically vital for national flows of traffic, both passenger and freight. Improvements to this network can have wide-ranging effects, and even changes to small bottlenecks can have great implications for the coherence of the overall network. The noble Lord said that many of these works are very small scale, but their impact on the national network can be significant. For example, the current A1 Peterborough to Blyth improvement scheme includes works to six junctions along a 64-mile stretch of road passing through three county or unitary council areas and five planning authority areas. Each of the individual junction works might be thought of as less than nationally significant, but they are located in three planning authority areas and would have needed separate planning processes if such decision-making had been devolved. Of course the A1 is an important north/south route linking London and the south-east with the midlands, the north and Scotland.
	This scheme, as a whole, taking all the works together, will deliver benefits both to the local area and much more widely across the country. As such, it is important not to be misled into equating the physical size of a project with its potential impact on the network and its potential national significance. However, even in respect of the strategic road network, we have taken significant steps of devolution. The noble Lord, Lord Greaves, referred to the detrunking exercise which has been taking place over the past decade. The desire to see that local decision-making was stronger in respect of roads that did not have a national network role was a major factor behind the extensive detrunking programme begun in 1998.
	We are coming to the end of the detrunking programme and some 200 routes have been detrunked already. I have a list which I can circulate to Members of the Committee. There are now only seven routes in the entire country which remain to be detrunked; under the programme, around 30 per cent of the strategic road network has been transferred to local highway authority control. There has been a very significant devolution of decision-making control away from the Secretary of State as a result of this process. That figure of 30 per cent is a powerful testament to our commitment to devolve real control over the roads network to local authorities where there are not genuine strategic interests at stake.
	Looking to the future, we recognise that patterns of traffic change over time, so the strategic road network will also continue to change. The position, I fully accept, is not static. I would be happy to look at particular routes, or part of routes, where it is felt by the LGA that the national/local balance is not correct. If the noble Lords, Lord Greaves and Lord Dixon-Smith, wish with the LGA to bring such routes to my attention, my officials would be content to look at them. However, our bona fides in this area are very strong, given the effect of the detrunking exercise.
	Let me deal with the point of the noble Lord, Lord Dixon-Smith, on trans-European network routes. I understand his point that these are not referred to in the Bill. However, in fact, virtually all roads on the trans-European network are on the strategic road network and so would be within the ambit of the IPC. I am told that the only exception is the A299 to Ramsgate. There is a long explanation of why this is not on the strategic road network, which I can give your Lordships. While the A299 to Ramsgate provides an important link to the port of Ramsgate for the international traffic using it, the volume of such traffic is far less than at Dover and it is not regarded as of strategic importance at the national level. However, I am content to look again at whether it should be classed as part of the strategic road network if the noble Lord wishes me to do so.

Lord Dixon-Smith: I have no particular desire to fall out with the people of Ramsgate over whether the route to their port is a strategic route. Will the Minister answer the questions about the A120 which I specifically raised? All the evidence that I have heard so far is that this is treated not as a strategic route but as a regional road to be dealt with entirely on a regional scale. It is a major problem.

Lord Adonis: Despite my extensive brief, I do not have brief on every single A road in the country. I promise to write to the noble Lord when I have briefing on the particular issue to do with this road.

Lord Dixon-Smith: The A120 runs from the Haven ports of Harwich and Felixstowe. It is supposed to go across country and ultimately be a link with Dublin, but there is an intervening bit of sea, which really means Holyhead.

Lord Adonis: I will look at the issue of the A120 and come back to the noble Lord.
	Perhaps I may make one comment on the noble Lord's proposal in respect of joint committees. We have discussed with the Local Government Association ways that we can improve the balance between local and national roads. However, we are not attracted to its proposal. We are not sure that the joint committees would have the capacity to take the decisions which the noble Lord proposes to give to them. There is also one major flaw in the proposal—I can see why it is there, because I assume that the amendment was drafted lock, stock and barrel by the LGA, but it completely undermines its effectiveness—which is that no proposal can be referred to a joint committee of the kind proposed by the noble Lord unless, as subsection (4) of the proposed new clause states,
	"all the local planning authorities concerned have consented to the making of the order".
	The whole purpose of the proposal, which is to produce a more streamlined decision-making process where proposals involve more than one local authority, would be undermined if all those local authorities did not agree in the first instance that such a proposal could go to such a joint committee. I can understand, in light of the lowest-common-denominator way in which the LGA often works, why this part of the amendment is there, but that does not mean that it would be an effective remedy to the issues being addressed by the Bill.

Lord Dixon-Smith: I am grateful to the Minister. He has dealt with these issues fairly extensively and, at this hour of the night, I shall not reply in great detail. I accept his point about trying to get all local authorities dealing with a particular application to agree. Having been a member of a local authority, I am all too aware of the difficulties of local authority co-operation. It is very easy to say it, but it is not as easy to achieve.
	I was pleased by what the Minister said about the work that had already been done on devolution of schemes to local highways authorities. I appreciate also that when one starts improving a road such as the A1, which I occasionally use, while the individual schemes may be small, their impact is of major significance if you start to bang them together. The A1 is one of the major trunk routes in the country that still needs considerable improvement. The Minister has been very helpful and we will study his reply in detail. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Dixon-Smith: had given notice of his intention to move Amendment No. 118:
	Clause 14, page 8, line 2, leave out subsections (3) to (5)

Lord Dixon-Smith: I am going to duck out on this one. The noble Lord, Lord Hunt, in his response to the earlier amendments, gave us some reasons why mission creep might in certain instances be desirable. I need to think a little more about what exactly he said.

[Amendment No. 118 not moved.]

Baroness Hamwee: moved Amendment No. 119:
	Clause 14, page 8, line 2, after "State" insert "shall keep under review the thresholds provided under sections 15(2)(c), 15(3)(b), 17(5), 18(2), 19(1), 22(3), 23(3), 25(4), 28(1) and 29(2) and"

Baroness Hamwee: I shall speak also to Amendment Nos. 120 and 121. Reading the amendments together in respect of the review of what should be included and excluded as a nationally significant infrastructure project, noble Lords will see that my proposal amounts to the Secretary of State keeping the thresholds under review and being able to amend them, but not being able to add or remove projects. Addition and removal seem to give the Secretary of State more power than is appropriate. I acknowledge that the clause requires an affirmative resolution and that the Delegated Powers and Regulatory Reform Committee considered the point and let it go. However, in doing so, it stated:
	"We should note that the memorandum has not sought to make a case for the removal of types of project, though we assume that the Minister will be able to do so to the House".
	This is my invitation to the Minister to make that case. I beg to move.

Lord Hunt of Kings Heath: Although the noble Lord, Lord Dixon-Smith, did not move his amendment, I suspect that we are going to debate the issue in any case. On that basis, he may want to come into the debate.
	I understand that this is a very important matter. As we know, Clause 14 sets out the broad terms of types of project that would be nationally significant infrastructure projects for the purpose of the Bill. The detailed threshold for each type of project is then spelt out in subsequent clauses, Clauses15 to 29. The Government's view is that while it is very important to set these out in the Bill as they are, there also needs to be some flexibility. That is why we think it right that the Secretary of State should have an ability to make secondary legislation at a later date to respond to the changes in technology and national need that might arise in future.
	We have already had a discussion on one type of technology that might need to be embraced in the Bill. We cannot foresee the future and the speed of technological development, but clearly one must hope that, particularly in view of the huge challenges that we face in relation to energy security and climate change, new technologies will come along to help us to meet those challenges. It is very important that this Bill allows us to meet those needs, albeit with appropriate safeguards.
	I understand why the noble Baroness who has moved her amendment and the noble Lord who has not moved his have legitimate concerns in this area. The noble Lord has already referred to yesterday's debate on counterterrorism. Although this is of a different order, we are debating some of the same questions about how far it is right for a parliamentary Bill to seek to anticipate future changes with the necessary safeguards and where there should be a boundary.
	We think that we have got the balance just about right here. The noble Baroness's amendments would remove the Secretary of State's ability to add new types of infrastructure to the types that can be defined as nationally significant under the Bill or to remove types of infrastructure where the Secretary of State subsequently decides that they should not be designated as being NSIPs. It also introduces a new statutory duty for the Secretary of State to keep under review certain thresholds for NSIPs specified in the Bill and limits the Secretary of State's power to amend thresholds, so that it can be exercised only in relation to those thresholds that are subject to this statutory duty of review.
	The new system will deal with nationally significant infrastructure projects in the fields of energy, transport, waste, water and waste-water, and clearly what we think of as being nationally significant in these areas may be subject to change. At the same time, we want the definition of an NSIP to cover only projects which really are of national significance. The obvious example in the energy sector is offshore renewable projects. Changing technologies may also mean that in future we have a national need for a new type of transport or energy infrastructure, and one which is not covered by the terms of the Bill as we read it today. We have already debated carbon capture and storage technology as being one potential candidate, depending on how the technology advances. That is why we think that the Secretary of State should have a power to alter these thresholds in future.
	The Committee can be assured that strong parliamentary safeguards remain in any such actions. Any set of regulations that alters the thresholds in Clause 14 would be subject to the affirmative resolution procedure, which would ensure that Members of this House would have the opportunity to deal with and if necessary vote on the contents of any revision.
	On the question of keeping thresholds under review, as long as the Secretary of State retains a general power to amend the NSIP thresholds, the provisions of administrative law will mean that he or she will be expected to keep these thresholds under review. It is interesting that in the other place the Lib Dem Front-Bench spokesman said in Committee:
	"I am grateful to the Minister for clarifying that the Government are aware of the issues and that they intend to keep a watching eye on the thresholds and any effect that they have on applications".—[Official Report, Commons, Planning Bill Committee, 22/1/08; col. 334.]
	This is really a question of whether we have got the balance right. Is there enough detail in relation to the thresholds that we are proposing in the fields set out? We believe that there is. Is there enough flexibility to allow for changes in developments in technology? We think that there is. Is there sufficient parliamentary safeguard? We think that there is through the affirmative resolution procedure. I hope that noble Lords will accept that this is a genuine effort to get the balance right and ensure that we can deal effectively with future technologies that may have a lot to offer us, but with sufficient parliamentary oversight.

Baroness Hamwee: Of course I accept that this is a genuine effort to get the balance right. But it is difficult to understand that there has to be flexibility with regard to the thresholds—which I have sought to preserve although perhaps not in an elegant or correct way—but not enough to respond to developments in technology; because thresholds is capacity by another term. Perhaps I am not sufficiently imaginative about what new projects there might be as distinct from capacity. That is very much what I am driving at in these amendments. I do not know whether the Minister has anything more to say.

Lord Hunt of Kings Heath: We discussed carbon capture storage technology earlier. If it came forward as part of a generating station application it could expect to be included as an associated work to the power station application. But it might be much more than that. It might be a national carbon capture and storage pipeline network, for example, which would be too extensive to be treated as an associated work to a generating station. It could qualify under Clause 20 as an NSIP in its own right as now defined, but it might not. We need these provisions to allow for that kind of flexibility. I cannot anticipate other projects and technologies, but I hope that they may come down the line in the next few years.

Baroness Hamwee: If developments are as dramatic as the Minister suggests, they are worthy of their own primary legislation.

Lord Hunt of Kings Heath: I understand that, but we are talking about pressing strategic matters. We know that primary legislation sometimes takes a long time to deal with. It is a question of balance: a judgment needs to be made about whether you have new primary legislation or whether the flexibility in the Bill serves the purpose. The Government think that the flexibility serves a purpose.

Baroness Hamwee: I was about to beg to withdraw the amendment but, in response to the Minister, I refuse to be characterised as attempting to block proper development. That is not what we on these Benches are about. I also refuse to accept that the Government are not in a position, when faced with something important, to ensure that it is dealt with. However, before I provoke the Minister further, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 120 and 121 not moved.]
	Clause 14, as amended, agreed to.
	Clause 15 [Generating stations]:
	[Amendments Nos. 122 to 127 not moved.]
	Clause 15 agreed to.
	Clause 16 [Electric lines]:
	[Amendment No. 128 not moved.]

Baroness Andrews: moved Amendment No. 129:
	Clause 16, page 9, line 12, leave out from "the" to ", or" in line 13 and insert "nominal voltage of the line is expected to be less than 132 kilovolts"
	On Question, amendment agreed to.
	Clause 16, as amended, agreed to.
	Clause 17 [Underground gas storage facilities]:

Baroness Andrews: moved Amendment No. 130:
	Clause 17, page 10, leave out lines 4 and 5
	On Question, amendment agreed to.
	Clause 17, as amended, agreed to.
	Clauses 18 and 19 agreed to.

Baroness Andrews: moved Amendment No. 131:
	After Clause 19, insert the following new Clause—
	"Gas transporter pipe-lines
	(1) The construction of a pipe-line by a gas transporter is within section 14(1)(ea) only if (when constructed) each of the conditions in subsections (2) to (5) is expected to be met in relation to the pipe-line.
	(2) The pipe-line must be wholly or partly in England.
	(3) Either—
	(a) the pipe-line must be more than 800 millimetres in diameter and more than 40 kilometres in length, or(b) the construction of the pipe-line must be likely to have a significant effect on the environment.
	(4) The pipe-line must have a design operating pressure of more than 7 bar gauge.
	(5) The pipe-line must convey gas for supply (directly or indirectly) to at least 50,000 customers, or potential customers, of one or more gas suppliers.
	(6) In the case of a pipe-line that (when constructed) will be only partly in England, the construction of the pipe-line is within section 14(1)(ea) only to the extent that the pipe-line will (when constructed) be in England.
	(7) "Gas supplier" has the same meaning as in Part 1 of the Gas Act 1986 (c. 44) (see section 7A(11) of that Act)."
	On Question, amendment agreed to.
	Clause 20 [Pipe-lines]:

Baroness Andrews: moved Amendment No. 132:
	Clause 20, page 11, line 24, after "pipe-line" insert "other than by a gas transporter"
	On Question, amendment agreed to.
	[Amendment No. 133 not moved.]

Baroness Andrews: moved Amendment No. 134:
	Clause 20, page 12, line 3, leave out ", and has been granted, for its construction," and insert "for its construction by virtue of section 14(1)(f), and has been granted,"
	On Question, amendment agreed to.
	Clause 20, as amended, agreed to.
	Clause 21 [Highways]:
	[Amendment No. 134A not moved.]
	Clause 21 agreed to.
	Clause 22 [Airports]:

Baroness Hamwee: moved Amendment No. 135:
	Clause 22, page 13, line 18, after "providing" insert "and will be permitted to provide"

Baroness Hamwee: I also speak to Amendments Nos. 136, 137, 139 and 158. I declared an interest earlier, in that I am affected by development at Heathrow, but the amendments to this clause are about all airports.
	In the Commons on Report, the Minister, Mr Healey, commenting on the intensification of the use of airports, said that it seemed,
	"an anomaly that the new planning system should deal with a significant increase in capacity at airports only when that was the result of physical development".—[Official Report, Commons, 2/6/08; col. 515.]
	I agree but I am scarred by experiences around the inquiries regarding Heathrow. I do not mean the length of the last inquiry, but conditions imposed appear to melt away, undertakings given appear not to be undertaken and so on. I want to probe some of the Bill's provisions, and distinguish between what an airport is capable of supporting and what it is permitted to provide. The terminal 4 permission permitted an increase in the number of passengers. There was little confidence in that locally, and I think that lack of confidence has been borne out. The Bill should give as many assurances as possible by referring to the airport being capable of providing or what it is permitted to provide by way of air passenger transport services.
	I shall not repeat the long discussion in the Commons about, among other things, the Cranford agreement and runway alternation at Heathrow. The Minister said that he would clarify the position to the extent that he could. These issues were raised in particular by John McDonnell. I have checked with him and he believes that he did not receive any follow-up correspondence from the Minister.
	Are my amendments relating to what is permitted in this context covered by Clause 31(2)(c), which refers to,
	"an increase in the permitted use of an airport is treated as a material change in the use of the airport"?
	I was interested to note that a significant increase is described in terms of air passenger services as an increase in the number of passengers. I believe that the number of air movements, or possibly the number of passengers and air movements, are normally referred to in this context. The figure of 50,000 more air movements a year to which I have referred in my amendment may not be correct; I was advised that it was equivalent to 10 million passengers. However, this is a probing amendment and I hope that the Minister will not go into the detail of the numbers. There is a point of principle here rather than of numbers.
	The Stansted decision, to which I think my noble friend Lady Tonge will refer, was announced last week, and dealt with movements as well as passenger numbers. For many purposes the numbers of flights are most relevant. Flights use fuel and disturb people—I use a mild term—on the ground, however many or however few passengers are on any given flight. I hope that the Minister will respond favourably to these probing amendments. I am genuinely puzzled as to why the relevant clause deals with the matter in the way that it does. I beg to move.

Baroness Tonge: Resisting the expansion of Heathrow Airport is an article of my political faith, and the Committee ought to know that. I declare an interest as the president of HACAN ClearSkies, which is the main campaigning group against the expansion of our airports.
	I want particularly to look in detail—I did the maths before I had a very good dinner tonight, so I am pretty sure that it is accurate—at Amendment No. 136, which questions the use of the number of passengers to assess the expansion of an airport. It is not really so relevant when you are thinking about the noise pollution and air pollution in an area. That is much more related to the number of air traffic movements. If you do the sums, 10 million passengers could be contained in 50,000 aeroplanes, if one assumes that the average—I am told—of 200 passengers per plane applied. If you had an average of 200 passengers per plane, an increase of 10 million passengers would mean 50,000 extra air traffic movements. That is not stated in the Bill.
	In fact, we know that does not happen, because planes do not have an average number of passengers. Sometimes they are quite small, and sometimes they fly with very few passengers at all. We have seen examples in the press recently of aeroplanes flying with no passengers, but they must do so to keep that slot in that airport open for that airline. We are causing air pollution and noise pollution just for the sake of keeping a slot open, with no passengers transported at all. Many more flights than 50,000 might be used to carry those 10 million passengers.
	As my noble friend said, the amendment is to probe the Government's thinking on the issue and to attempt to more accurately quantify the nuisance to an area from noise and pollution, should the expansion go ahead. If the Government will not use just air traffic movements as the criteria, they should use both either/or; either 10 million passengers or a limit of 50,000 air traffic movements. That would be a much more reasonable way of expressing it. As my noble friend said, the recently announced Stansted expansion is for 10 million passengers and no more than 23,000 air traffic movements. If you do the maths, that assumes that every one of those 23,000 planes would have over 400 passengers, which is rubbish. We know that will not happen. Therefore, those 10 million passengers in fact are much more likely to be carried in 50,000 air traffic movements.
	My noble friend Lady Hamwee said that the conditions imposed melted away after the terminal 4 inquiry and the terminal 5 inquiry. In fact, we were told after terminal 4 that there would be no more expansion at Heathrow, and we were told during the terminal 5 inquiry—of which I attended a great deal—that there was no need for a third runway and that the rumours that were being put about were ridiculous. In those inquiries and just after, we were actually told lies. When I saw the figures for Stansted, I thought, "Here we go again, misleading the public and trying to bamboozle people into thinking that there will be less disturbance than there really will be". I urge the Government, on the side of honesty and decency, to specify carefully in the Bill just what we are expecting in terms of passenger numbers and air traffic movements.

Earl Cathcart: I accept that these amendments are probing in nature, and I listened with interest to the questions of the noble Baroness, Lady Hamwee. I will be equally interested in the Minister's reply. I am sure that Amendments Nos. 135 and 137 are entirely probing and I await the Minister's response. It is odd that there is a discrepancy between the phrasing of subsections (5) and (8). One uses the words "capable" and "permitted". At face value, those amendments would explicitly place a limit on the capacity of all airports' passenger capacity, which could be altered only if permission were granted.
	I understand why the noble Baroness tabled Amendments Nos. 136 and 139 as probing amendments. Why have the Government used different measurements of airport activity? I agree entirely with the noble Baronesses, Lady Hamwee and Lady Tonge, that the relevance to the public and the communities affected is surely the number of aircraft movements. That is especially the case in relation to climate change. I was interested in the description by the noble Baroness, Lady Tonge, of slots being kept open when no passengers were being flown. We are not interested in the number of passengers, but aircraft movements.
	Amendment No. 138 in the group refers to the hours of operation of an airport. This can be a highly emotive topic for the communities that surround airports and fall under their flight paths. We know from repeated complaints about airport expansion that people feel strongly about the detrimental effects on their lives that aircraft noise can cause. I should not repeat my earlier comments when I spoke to Amendment No. 42 of my noble friend Lord Jenkin, but this issue is tied closely to the points that I raised.
	The use of airports and their expansion are exactly the sort of issues that must be laid open to proper consultation and public debate. Any major development of airports is bound to impact on communities, whose views must have a chance to be considered. These problems are precisely why the Government cannot reheat old aviation policies and adopt them as national policy statements without proper consultation and compliance with all the current EU directives and regulations.

Lord Adonis: I say, first, to the noble Baroness, Lady Hamwee, that my information is that a letter was sent on the points she raised about the Cranford agreement and permitted development to John McDonnell MP after the first day of the Report stage in another place. However, I will look at the issue and if the letter was not sent, I will write to the noble Baroness and to Mr McDonnell.

Baroness Hamwee: I apologise if I unfairly described what did not happen. I asked Mr McDonnell and his response was, "If I got the letter, it was so uninteresting that I did not notice".

Lord Adonis: I cannot conceive that any letter from my department could be uninteresting, but the fact that a letter has been sent may not mean that it was received, whether it was interesting or not. I shall look at this issue and if there has been a slip-up in my department, I shall ensure that we immediately write to the noble Baroness and copy the letter to John McDonnell.
	Clause 22 sets out the thresholds for which airport-related development is classed as a nationally significant infrastructure project. Amendments Nos. 135 and 137 seek to probe the sections of the Bill that deal with alterations to airports. Perhaps I may explain the position. Airport developments are already given maximum permitted uses by virtue of their planning permissions and, in the future, development consent orders will also specify maximum permitted uses. I know that the amendments are probing, but perhaps I may explore them more fully.
	They could inadvertently create a distinction between the permitted number of services and the services that an airport is capable of providing. This could mean that a developer might try to seek planning permission under the Town and Country Planning Act for a permitted use of fewer than 10 million passengers a year, even though the alterations themselves would make the airport capable of serving more than 10 million passengers a year. We do not believe that such a position would be justifiable.
	Clause 31(2)(c) states that an increase in the permitted use of an airport counts as a material change in the use of the airport. This means that an increase in the permitted use of the airport counts as "development" within the meaning of the Bill, and therefore development consent would be required if the increase in the permitted use exceeded the thresholds in Clause 22. I believe that that is the assurance that the noble Baroness, Lady Hamwee, was seeking from me.
	Amendment No. 158 seeks to delete that subsection, with the effect that an airport operator seeking to increase the capacity of its airport above 10 million passengers a year—or 10,000 air transport movements a year in the case of air cargo—would not have to seek development consent from the IPC. We do not believe that such an amendment is right. We wish to ensure that nationally significant airport developments are examined by the IPC, whether they are for new airports or extensions of existing airports.
	The noble Baronesses, Lady Hamwee and Lady Tonge, also raised in Amendments Nos. 136 and 139 the issue of why the airports threshold is expressed in terms of numbers of passengers rather than the number of air transport movements. I can tell the noble Baronesses that the Government took this approach following consultation, as we do not want the definition of a nationally significant infrastructure project airport development to be in effect a definition related to the construction of a new runway. Airport-related development may well include runway developments, as described by the noble Baroness, Lady Tonge, but it could also include work to terminals which would not necessarily have an impact on the number of aeroplanes using a runway—for example, if the terminal and not the runway were the limiting factor on capacity. We believe that most reasonable people would agree that if an airport wanted to cater for an additional 10 million passengers or more per annum, the development would be of national significance irrespective of whether it needed to do development work on the runway.
	In respect of air freight, we used air transport movements as the definition in the Bill because, following consultation, we concluded that it was a more reliable manner of distinguishing national significance than the number of tonnes of increased traffic.

Baroness Tonge: I know that it is late but can the Minister explain why last week the permitted expansion of Stansted airport was expressed in both passenger and air traffic numbers, however erroneously in my view.

Lord Adonis: I do not think that that is a relevant consideration, as that was the way in which the consent was expressed. The issue here is the threshold above which proposals would be referred to the IPC. They are two very separate issues. The fact that the consent was expressed in terms both of numbers of movements and numbers of passengers does not affect the fact that in the Bill we have chosen to use the number of passengers as the threshold above which applications should be referred to the IPC. I hope that that explains the situation to the noble Baroness. She may not be satisfied with it because I know that she wishes to see a threshold based both on numbers of passengers and numbers of movements, but the fact that the consent last week was expressed in both terms does not in any way affect the decision that we have taken to proceed in the Bill with the threshold set at 10 million passengers.

Baroness Tonge: I also believe that in Europe the threshold is expressed in air traffic movements—50,000 such movements. In fact, there is a European agreement to express the threshold in air traffic movements, although I am not totally sure of the detail. I must admit that I am not totally satisfied and I am not convinced by this at all. I just cannot understand the Minister's argument.

Lord Adonis: I have explained the position. I am not familiar with the European regulation to which the noble Baroness refers but I shall look at it and write to her.
	In conclusion, while I have been speaking I have been passed a copy of the letter from John Healey to John McDonnell dated 5 June 2008, which I shall pass to the noble Baroness so that I can satisfy her that, interesting or uninteresting, it was indeed sense.

Baroness Hamwee: I want to know whether or not it was interesting.
	I am grateful for the explanation on the first clutch of amendments. I, too, am puzzled by there being no reference to air traffic movements. Stansted is relevant because it shows that the Government were thinking in terms of transport movements and passenger numbers, which are equally relevant in their impact. I entirely agree that an additional 10 million, or however many million passengers going through a terminal is—if I can use the term a bit non-technically—material. I accept that it is very significant, but I should have thought it appropriate to have parallel thresholds so that both or either could be used. I do not feel capable of drafting off the top of my head at this time of night, but I want to explore that.
	I am very conscious of the time that the Bill is taking. Perhaps we can explore it further outside the Chamber with a view to coming back with an amendment. I might talk to the Minister about that between now and Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 136 and 137 not moved.]
	[Amendment Nos. 138 and 139 not moved.]
	Clause 22 agreed to.
	Clause 23 [Harbour facilities]:

Lord Berkeley: moved Amendment No. 140:
	Clause 23, page 15, line 5, at end insert—
	"( ) The construction or alteration of harbour facilities is not within section 14(1)(i) if it is permitted development."

Lord Berkeley: We are now moving from the air to the water. I shall also speak to Amendments Nos. 141 to 143, 170 and171. The issue is permitted development rights for harbours. We have talked about them for pipelines, and the Bill provides them for railways, but provision for harbours seems to be missing, which is the point of my amendments. I declare an interest as a harbour commissioner for the port of Fowey, in Cornwall. The amendments have two aims. They would except harbour authorities from the need to obtain a development consent order in respect of acts authorised under their permitted development rights and would confer PDRs on harbour authorities that wish to alter a facility authorised by a development consent.
	PDRs are used by statutory port authorities frequently to maintain and develop port facilities. Ports and harbours rely on PDRs to respond to technical advances, changes in demand and changes in circumstances in order to remain competitive. Their removal could compromise the efficient movement of international trade through these ports. One of the biggest operators, Associated British Ports, is deeply concerned. It owns 20 or 30 ports around the country—I do not have a clue how many. It is concerned that a Bill aimed at speeding up the planning process may do the reverse for larger port facilities in England and Wales. Port authorities will instead have to apply for a development consent order to be authorised to undertake what is now fairly routine business—using permitted development rights. They will have to wait probably two years or so before doing work that they can do very quickly at present. That is clearly contrary to the general thrust of government policy on planning.
	The position of PDRs has been somewhat unclear because the Bill as introduced in the other place did not preserve them. Having been challenged on the matter, the honourable Member John Healey, the Local Government Minister, gave a simple but welcome expression of the Government's stance. I quote:
	"We are protecting all permitted development rights in the Bill".—[Official Report, 2/6/08; col. 529.]
	That general commitment is not reflected in the Bill as introduced into this House. The Government seem to be adopting a piecemeal approach, so, while I was pleased to note that the amendments tabled on Report preserved the railways' permitted development rights, the absence of a general saving of PDRs is a bit disappointing. I do not see why there is unequal treatment of railways and ports. If railways have PDRs, ports should have them.
	The second issue concerns alterations to a facility authorised by a development consent order. Alterations of harbour facilities authorised by an Act of Parliament or an order under the Harbours Act 1964 will, provided that they are within existing authorised limits, normally enjoy PDRs. However, the Bill does not apply PDRs to alterations of facilities authorised by a development consent order, so a harbour authority would need to obtain an additional planning permission for such alterations. That is clearly not in the interests of efficiency, and it could hold ports back from taking action quickly to remedy operational problems or to exploit new commercial opportunities.
	My amendment simply places an authorisation under a development consent order on the same footing as one made under an Act or a harbour revision order. I hope my noble friend will recognise that I am trying to ensure that the policy set out by our honourable friend in another place also applies to ports. I beg to move.

Lord Adonis: In his Amendments Nos. 140 to 143, 170 and 171, my noble friend exempts port operators from having to seek development consent if they possess relevant permitted development rights to carry out such work. I appreciate the point he made about ports undertakers being keen to avoid being required to make applications for planning permission for minor improvements to infrastructure or for maintenance work. However, that would not be the case under the Bill, where permitted developments are proposed beneath the threshold in Clause 23.
	We recognise that statutory undertakers have rights that stem from Part 17 of Schedule 2 to the general permitted development order to carry out certain types of development. However, these permitted development rights are not available in respect of developments that require environmental impact assessment. Our view is that this Bill will not remove any such permitted development rights since the thresholds have been set above the level at which the project would require an environmental impact assessment—that is, when it is likely to have a significant environmental effect—and permitted development rights would no longer apply.
	Permitted development rights are already available where the nature of the development is specifically authorised by local or private Acts or orders, and we intend to protect existing Part 11 permitted development rights under the general permitted development order.
	We are not touching the ability of a harbour authority to undertake small projects currently allowed under its permitted development rights without seeking development consent. However, developers should not salami-slice environmentally significant projects into small chunks in order to avoid proper scrutiny, which would be contrary to EU law on environmental impact assessments.
	I hear from my noble friend that ports undertakers have complained that they are being treated unfairly compared with rail undertakers because Clause 23 does not contain a provision equivalent to subsections (1)(c) and (2)(c) of Clause 24—that is, it does not specifically exclude works carried out under permitted development from the thresholds of a harbours NSIP. However, an important difference between Clauses 23 and 24 is that there are high-capacity thresholds in Clause 23 but not in Clause 24, so the exclusion for permitted development in Clause 24 serves a useful purpose. Where the project is likely to have a significant effect on the environment, a railway undertaker will not be able to rely on permitted development rights, for the same reason that salami-slicing a project is not permitted under EU law. I hope that that explains why we have not gone down the route outlined by my noble friend.
	On a wider note, I know that operators have raised concerns about how operational and maintenance works could be carried out on facilities constructed under a development consent order. We can offer some comfort to undertakers on this score. First, we intend to retain permitted development rights under secondary legislation in respect of development which has been specifically authorised by a local or private Act, an order approved by both Houses or a Harbours Act order where the development has not yet been carried out. Secondly, we intend to make amendments to the general permitted development order, such that land designated by a development consent order will become "operational land" for certain purposes, so that planning permission may be granted for future operational and maintenance works. In doing that, we will have to continue to be mindful of our EU obligations on environmental impact assessments.
	I hope that I have gone some way to meeting my noble friend's concerns and have explained why the thresholds are in the Bill.

Lord Berkeley: I am very grateful to my noble friend for that detailed response. I shall read it with interest, because it is difficult to take in at this time of night. I am sure the intention was not to go down the salami-slicing route, as he calls it, because that is not the way to develop projects. I know that the Bill has already been significantly improved, because at one stage one of the independent planning commission projects was 100 yards of cycle route next to a trunk road. Ministers have, rightly, taken that provision out. When I read that, I am sure that I will learn a lot and the ports will be much happier. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 141 to 143 not moved.]
	Clause 23 agreed to.
	Clause 24 [Railways]:

The Earl of Caithness: moved Amendment No. 144:
	Clause 24, page 15, line 16, leave out paragraph (a) and insert—
	"(a) one end of the railway will (when constructed) be in England and the other end of it in Scotland,"

The Earl of Caithness: I shall speak also to Amendment No. 145. First, I cannot see why the amendments tabled by the noble Lord, Lord Berkeley, have been grouped with mine; they address a totally different point. Perhaps they are all to do with railways, but it is hard on the Minister and rather disrupts the thought process to lump all this stuff together.
	In Part 3 we are dealing with nationally significant infrastructure projects. The UK is a nation; Scotland is a nation; England is a nation. In railways, there is no apparent link in future developments to what might be happening north of the border. In Clause 16, which refers to electric lines, there is a link to Scotland; in Clause 20, which refers to pipelines, there is a link to Scotland. I should have raised Clause 21, on highways, because it does not relate to Scotland. The point of tabling the amendments is simply to say: is it not a little stupid to have a project in England to develop a railway that could go right up to the border with Scotland but not beyond that? What discussions are under way with Scotland? What proposals are there for major infrastructure projects for highways and railways that will run across the border, so that we join up both Governments and get some sort of co-ordination? I beg to move.

Lord Berkeley: I might as well speak to the amendment moved by the noble Earl, Lord Caithness, and to my Amendments Nos. 146 to 151. He optimistically wonders how many new railway lines will be built between Scotland and England. It might happen one day, but his Scottish Government, if I can call them that, are already building the Borders line half way to Carlisle. Perhaps it will go all the way to Carlisle, in which case they will have an interesting project. It is an interesting idea, anyway.
	My amendments relate to Clause 25 and rail freight interchanges. I put on record my thanks to officials in the sponsoring department of the Bill and the Department for Transport for some interesting discussions. We did not always agree, but we had some useful debates.
	Amendment No. 146 would reduce the lower limit for a rail freight interchange from 60 hectares to 30. Amendment No. 150 would insert a definition of area, because if we do not have one, what are we talking about? A rail freight terminal—here I declare an interest as chairman of the Rail Freight Group—includes the area for which you seek planning permission, some environmental protection measures, one hopes, access roads, access railways, sidings, hard standing and sheds. How you define the area therefore has a significant effect on how big it should be. I am talking about the lower limit of something that we are defining as strategic, so the amendment offers a way of defining such an area. If Ministers think that the definition should be different, we will probably end up with a different number. The key thing is to have an area.
	Sixty hectares is too big for a terminal that is strategic. A network of terminals is needed around the country if rail freight is to make sense. The terminals need to be well distributed if one is to avoid long road journeys at each end of them. In other words, one terminal in London is insufficient, because London is so large that three, four or even several more will probably be needed. Sixty hectares may be fine—even 80 hectares may be fine—for a greenfield site, as many greenfield sites that are anywhere near major conurbations will also be in a green belt, which does not help to get planning permission. However, if a site can be found that is closer to the centre of consumption or production, one might well have to make do with a smaller area because of land values and a lack of land. One should also bear in mind that a terminal needs good road access, good rail access and all the other conditions that I mentioned, which are in short supply.
	Of the existing terminals, of which there are quite a number, some are much smaller, whereas one or two are larger. However, a network of terminals is needed to enable the Government's transport policy to be implemented to grow the volume of rail freight, so it would be good if the area limit was reduced to 30 hectares. An application for a terminal in Radlett, which seems to be the home of many Liberal Democrats, was rejected last week for whatever reason. I shall not comment on it, but these things do get rejected, so my Amendments Nos. 146 and 149 propose an area of 30 hectares.
	My other amendments are quite small. I do not like the phrase "container train", because it is not right to say in a Bill how goods are carried in a train. They might be carried in containers or in wagons; it does not really matter. They are being carried, which is the important thing. I want to change the word "container" to "goods", which is the normal word used in legislation. As regards storing the goods in warehouses, the important thing is for the goods to be stored. The words "suitable storage facilities" are not as prescriptive as the word "warehouses".
	Finally, on Amendment No. 151, if the Minister accepts that the words "container train" should be changed to "goods train", a definition of the words "container train" is unnecessary in Clause 25(9). That summarises these amendments.

Lord Lea of Crondall: I indicated to my noble friend Lord Berkeley that, as a supporter of the Rail Freight Group, I should like to emphasise one point that he has made. No other area covered by this Bill is so susceptible to nimbyism as rail freight interchanges. Everyone in the country wants to get more freight off the roads and on to rail, which requires rail freight interchanges, but the very people who unanimously say, "Get more freight on to rail", hate any rail freight interchange anywhere in their town or city. That is very glaring nimbyism, which leaves me to support the figure of 30 hectares rather than 60 hectares for the reasons given by my noble friend.
	Many local authorities will reject these rail freight interchanges if they are put to them for their consent. As we know, the heart of this Bill is about major national strategic questions going to the national Planning Infrastructure Commission not just because of procedural niceties but, in effect, to overcome some of the contradictions arising from nimbyism. I repeat: it is not that people do not want the freight to go on to rail but that they do not want the rail freight interchange.
	I hope that the Minister will give some more thought to this or at least an explanation as to whether sufficient work has been done to ascertain whether in the next 10 or 20 years 30 hectares would not be nearer the sort of pattern of rail use through rail freight interchanges that would be conducive in practice to getting more freight off the roads and on to the railways.

Earl Cathcart: The amendments tabled by my noble friend Lord Caithness are similar to our earlier Amendment No. 133 about pipelines that leave or enter England or Wales. My noble friend raised a good point. He was not talking just about railways. That was not really the issue. I was not going to speak to this amendment until the noble Lord, Lord Berkeley, pooh-poohed the prospect of new railway lines going north of the border. I do not believe that my noble friend's amendment is about railway lines. It is about what happens when infrastructure projects cross borders. They might be crossing borders with Scotland, as in my noble friend's amendment. They might be pipelines, power lines, roads or railways. What discussions have taken place and/or what agreements are in place or are intended to be in place with the Scottish Parliament and the Welsh Assembly?

Lord Adonis: I have no idea why these amendments are grouped. I thought that it might be because the noble Earl anticipated that my noble friend, with his commendable zeal for rail freight, was about to propose a new dedicated goods line between England and Scotland. However, he has not yet done so, so I can only assume that the amendments were grouped because it was thought that there might be rail implications in them all. However, I will deal with them separately.
	In respect of cross-border railways and Amendments Nos. 144 and 145, let me say, as the Government have said in response to previous amendments with a similar intent, that this Bill does not seek to alter the devolution settlements. Welsh and Scottish Ministers will continue to authorise railway projects wholly in Wales or Scotland respectively. Cross-border projects will be handled in accordance with the existing devolution settlement. Where a proposed Anglo-Scottish scheme comes forward, there are two ways of proceeding. The scheme could be split at the border, with the IPC considering the English part and Scottish Ministers the Scottish part, or such a scheme could be authorised by means of a private or possibly hybrid Bill presented to the Westminster Parliament and very likely requiring a Sewel motion. Discussions on which of these options would be best would take place at the appropriate time. I hope that that deals with the noble Earl's concerns in this regard.
	I turn to my noble friend's amendments. I can tell him that we appreciate the points that he makes about the definition of container trains in Clause 25, in subsections (4) and (9). We are keen to look at these further with him between now and the Report stage.
	On rail freight interchanges, I know that my noble friend has had detailed discussions on these points with officials from my department, so my responses will come as no surprise to him. However, I think that I should put the Government's position on the record. In respect of Amendments Nos. 146 and 149, we are not attracted to lowering the area threshold for rail freight interchanges from 60 hectares to 30 hectares. We arrived at the 60-hectare threshold after considerable research and we still believe that the terminals considered to be nationally significant strategic rail freight interchanges would be in excess of 60 hectares. While we share the concerns of both my noble friends to see that appropriate support is given to the rail freight industry and that interchanges at a certain appropriate level are considered to be national projects, we believe that the 60-hectare threshold meets that requirement. Reducing the threshold to 30 hectares in the way proposed would take away from local authorities decisions that we do not believe to be of genuine national significance.
	We are not attracted to the use of the phrase "suitable storage facilities" in Amendment No. 148, which we feel is not sufficiently defined and moves away from the primary purpose of Clause 25, which is to capture the sort of proposed development that is of national significance. We also believe that warehousing is a key element of any such development. On that basis, we believe that the word "warehouses" in subsection (6) is already adequate.
	Finally, government Amendment No. 172, on Crossrail extensions, will ensure that extensions to the Crossrail scheme and alterations to railway facilities for the purpose of or in connection with Crossrail do not necessarily need to be considered under the planning Acts, but can instead be authorised under the Transport and Works Act 1992 in respect of which Section 48 of the Crossrail Act 2008 confers additional enabling powers. Without this proposed amendment, Crossrail extensions and alterations that meet the railway threshold in Clause 24 would be prevented from being authorised through the enhanced TWA regime and would be precluded from making use of enhanced TWA powers provided in Section 48 of the Crossrail Act. Instead, they would inevitably require development consent from the IPC. While there are at present no firm plans for any such extensions or alterations, they remain a distinct possibility for a project of this significance, complexity and construction timescale. We therefore think it appropriate to put this provision in place.

Lord Berkeley: I hope that my noble friend does not mind if I ask him a question about his amendment. It seems a little odd that a Crossrail extension is again suggested as a special case. I am not sure exactly what he means by that. Crossrail trains will end up—apart from at Heathrow Airport, where there are buffers underground—on the main line. If the trains go beyond the existing extension, that will involve electrification and, possibly, the building of some sidings. Much of that would probably be on permitted development, because it is on the existing railway. Why is it thought important to bring Crossrail in as a special case whereas an extension to a railway line in Manchester or elsewhere would not get this preferential treatment?

Lord Adonis: I shall write to my noble friend setting out the full reasons why. Our reasoning is that, as he said, it would be a development of an existing railway which had already gone through an exhaustive parliamentary process and consent procedure; it is in a different position from a wholly new line of the kind he suggested. But I shall be happy to set out our reasoning in greater detail.

Lord Woolmer of Leeds: On a previous amendment the Minister's noble friend Lord Hunt gave some empirical data to support his argument about the offshore wind. I think he said 6 per cent of the applications and so on would fall within this.

Lord Hunt of Kings Heath: Perhaps I may explain. Looking back over the past 15 years at what has been approved, about 6 per cent would have fallen under the new regime proposed in the Bill.

Lord Woolmer of Leeds: That is helpful. On the amendment of my noble friend Lord Berkeley and the size of rail freight interchanges, the Minister did not supply the Committee with empirical data on the significance of sticking to at least 60 hectares as opposed to 30 hectares. It is an important question as to whether or not historically rail freight interchanges have been 60 hectares or above and what the impact would be of taking 30 hectares. If the Minister does not have the information at the moment, perhaps he will write to the noble Lords who are interested in that point.
	By sticking with 60 hectares, there is not a shadow of a doubt that major rail freight interchanges will be out in the green belt and the countryside and further away from the ultimate point of need. That means that many lorries will be back on the road and shifting goods from the green belt sites into the urban areas, which will defeat part of the purpose of rail freight. It is an important point. It is not a partisan point but one of practical fact as to the significance of this to the strategic objectives of rail freight.

Lord Adonis: I do not have the empirical data to hand but I shall write to my noble friend on the average size of developments.

Baroness Hamwee: The Minister might not wish to have the data which seem to be flying towards him at this hour of night. When he writes on Crossrail, will he explain what is meant by an extension and, in this instance, what Crossrail is? In lay terms, an extension to Crossrail could mean something very significant and more or less amounting to a new railway line. But that is because we have been talking over the years about extensions to Crossrail in perhaps a looser way than is meant here and it would be helpful to understand the detail.

Lord Berkeley: Perhaps I may help the noble Baroness. In theory, a new line to Scotland to help the noble Earl, Lord Caithness, could be an extension to Crossrail.

Lord Adonis: I am informed that Crossrail extension is a legal term defined in the Crossrail Act 2008. Alas, I do not have the wording of that Act to hand but I will supply it to my noble friend.

The Earl of Caithness: What a horribly disjointed debate we have had. Let us hope the groupings are a bit better in the future. I am grateful to the Minister for what he has said. It seems a little odd that there should be confusion regarding nationally significant infrastructure projects. I question whether Part 3 ought to be entitled "Nationally significant infrastructure projects"—perhaps it should refer to infrastructure projects for England. I am grateful to the Minister for explaining the procedure. The changes to the devolution arrangements will doubtless come in a few years' time. I have no intention of upsetting them under this Bill—they will arise for different reasons.
	I hope that the Government will work very closely with the Scottish Government when it comes to cross-border issues. It was quite clear when we looked at the draft marine Bill that there were considerable problems between the Scottish and Westminster Governments on maritime issues. I hope that the Minister will bear that in mind and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 145 not moved.]
	Clause 24 agreed to.
	Clause 25 [Rail freight interchanges]:
	[Amendments Nos. 146 to 151 not moved.]
	Clause 25 agreed to.
	Clauses 26 and 27 agreed to.
	Clause 28 [Waste water treatment plants]:

Lord Hunt of Kings Heath: moved Amendment No. 152:
	Clause 28, page 17, line 39, leave out "150,000" and insert "500,000"

Lord Hunt of Kings Heath: I shall speak first to the government amendments and then the noble Lord, Lord Dixon-Smith, will speak to his.
	Clause 28 defines the types of waste water treatment plant development that will be classed as nationally significant under the Bill and so require consent from the IPC. There has been considerable consultation on the planning White Paper and, more recently, extensive discussions with industry. Several stakeholders have raised concerns with the Government that the threshold for waste water treatment plants is too low and may capture projects that are not of national significance. We have listened to those concerns and have been persuaded by the arguments that industry and stakeholders have made. As a result, we have tabled our Amendments Nos. 152 and 153, which increase the threshold so as only to capture the biggest projects in England where the additional treatment capacity exceeds a population equivalent of 500,000. The challenge, as ever, is to bring the empirical evidence. My understanding is that this threshold will be consistent with the project caseload anticipated in the Bill impact assessment of one project every 10 years. I beg to move.

Lord Dixon-Smith: My Amendments Nos. 154 and 155 are grouped with the government amendment. I was fascinated by what the Minister said about the reasons for changing the figures with regard to Amendments Nos. 152 and 153. Although he said that arguments had been produced, he did not actually tell us what the arguments were, except to mention the possibility of one case every 10 years. I suppose that that is an argument, but whether it justifies national significance I have no means of judging, if he will forgive my putting it that way. When he responds to my amendments, perhaps he will deal with the matter in more detail.
	My amendments relate to Clause 29 on hazardous waste facilities. There are two sorts of hazardous waste. The Minister has to some degree answered the question of my noble friend Lord Jenkin, who is no longer present, about nuclear waste. I looked at these figures and wondered whether hazardous waste facilities included nuclear waste. I could not see nuclear waste producing anything like these figures annually, so I wondered what we were talking about. I accept that there are other forms of hazardous waste. We used to have a very large hazardous waste disposal facility in my part of the world many years ago. The trouble was that it was so effective and efficient that it drew waste from about half the country, which caused immense angst among local people who knew about it, because the hazardous wastes were being transported on ordinary roads in ordinary transport. It would arrive at a particular point in Essex, and local people would ask, "Why should we have to dispose of other people's hazardous waste?". It was a question which was very difficult to resolve, but the fact was that a facility was there that could deal with large quantities of such waste, and did so very efficiently and effectively. Of not least interest about the establishment in question was that the biggest part of the waste disposal operation consisted of taking somebody's waste and finding that it was somebody else's raw material. It transferred an immense amount of materials because it had a wide circle of contacts. It was able to dispose of a lot of the waste either by making use of it or at least finding others to do so.
	My amendments probe the figures in the clause. One hundred thousand tonnes per year of deep storage is roughly 100,000 cubic yards. If one is disposing of material in solid rock in permeable foundation, it amounts to a fairly heavy mining commitment each year. Exactly what does one finish up with after 10, 15 or 20 years of that kind of establishment? Will the Minister explain that? Thirty thousand tonnes per year in any other case is understandable, because people become very concerned about the materials if they are disposed of on the surface and there is some merit in limiting the scale. Even so, after 10 years, you are talking about 300,000 tonnes of such material being disposed of and the heat would keep growing. Will the Minister explain why he has lifted the figures and what lies behind the change that the Government are proposing?

Lord Berkeley: Perhaps the Minister, the noble Lord, Lord Dixon-Smith and I could explore the numbers a little more. In Clause 28, the Government propose to increase the threshold to 500,000 people, which is roughly one-100th spread over England and Wales, if I have got the mathematics right.
	I cannot see what is strategic about these plants. They are water treatment plants or sewage plants, or whatever we want to call them. Every town has to have one—London has lots of them and will have a great big tunnel down the Thames, which might be strategic—but they are not interconnected, so I wonder what is strategic about them. Is it just a convenient way of getting planning permission for something which is not very popular? If so, I could understand that as well. I compare them with a dozen rail freight terminals around the country which have to be connected by rail to work, but they are not apparently strategic—we will probably come back to that another day.
	I would understand the amendments of the noble Lord, Lord Dixon-Smith, to Clause 29 if I knew how many tonnes of hazardous waste were disposed of in the country as a whole. If it is the same figure as he has given, it is clear that there will be a lot of road or rail transport; if it is 10 or 100 times that, it might be more strategic. If my noble friend does not have the figures now, I am sure that he can write to us.

Lord Hunt of Kings Heath: This has been an extremely interesting debate. I shall deal with the waste-water amendment first, and the question of thresholds. I failed to persuade the noble Lord, Lord Dixon-Smith, in moving my amendments, as to why it was appropriate to change the threshold, although I should have thought from his general stance that he would have welcomed the fact that we have raised the threshold.
	During the White Paper consultation we asked questions about whether the 150,000 population threshold was about right. We consulted with stakeholders and a pretty strong view came back that we did not get the threshold right in the Bill and that the 150,000 threshold would catch too many numerous schemes that are not genuinely nationally significant.
	My noble friend Lord Berkeley challenged me to make comparisons between the previous debate with my noble friend on what is nationally significant in relation to waste water. It is a good question, but it is difficult to answer in strict comparisons. If we are frank, common-sense judgments have to be made here, and I take him back to the original impact assessment on the Bill of an anticipated application approval of about one in 10 years. He may say that that is not a proper definition of "nationally significant", but our view is that that kind of scale and threshold is of national significance. He mentioned the Thames Tideway, which is an interesting point that embraces major developments through an existing sewerage treatment works. My understanding is that the planning application for the 32 kilometre Thames tunnel is part of the project and would, under the threshold, go to the IPC, which is one illustration of what we mean by nationally significant.
	As for the hazardous waste facility threshold, in comparison to existing facilities I do not have the figures that my noble friend asked for. I shall try to find out and let him know. On how the threshold now in the Bill would impact, my understanding is that currently there are only nine hazardous waste landfills and one deep storage facility, each with a permitted throughput of 100 kilotonnes or more per annum. These all serve a national need, which is why we think that we have the threshold figures about right.
	Clearly, as I think we are beginning to understand, these are judgments. For each project area listed in the Bill there are different considerations in relation to the threshold. Overall we believe that we have the balance right; overall we believe that in its work the IPC will deal with projects of national significance, but that the IPC should not be swamped with applications that would impact on its ability to come to appropriate decisions on projects of national importance. In the end it is a judgment, but we think that we have the judgment about right.

On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendment No. 153:
	Clause 28, page 18, line 2, leave out "150,000" and insert "500,000"
	On Question, amendment agreed to.
	Clause 28, as amended, agreed to.
	Clause 29 [Hazardous waste facilities]:
	[Amendments Nos. 154 and 155 not moved.]
	Clause 29 agreed to.
	Clause 30 [When development consent is required]:

Baroness Hamwee: moved Amendment No. 156:
	Clause 30, page 19, line 5, leave out "or forms part of"

Baroness Hamwee: This amendment is repeated in my Amendment No. 162 in a later clause. Clause 30 provides for when development consent is required,
	"to the extent that the development is or forms part of a nationally significant infrastructure project".
	Both amendments would remove "or forms part of", to probe what that means. Are there some de minimis arrangements? How will they work? Is the provision designed to sweep up after the bulk of the project has been determined? There is nothing sinister in this: I am unclear what the limits are. It seems odd that development consent and all the paraphernalia that that entails would apply if the part is very small. I beg to move.

Lord Dixon-Smith: We added our name to this amendment which originally came from the Law Society.

Baroness Hamwee: It came out of my head.

Lord Dixon-Smith: I apologise to the noble Baroness, but my advice was that the Law Society suggested the amendment. Anyway, it is neither here nor there. I am grateful to the noble Baroness and quite happy if she had responsibility for it. It does not make any difference because I am happy to have my name added to it. The amendment is designed to clarify, as the noble Baroness said, whether additional minor development works might require development consent and the process by which that would be dealt with.
	Amendment No. 157, which we also have in this group, deals with the question of changing the fuel source for a generating station. As drafted, the clause deals with only one type of fuel conversion. One can conceive of other types of fuel conversion perhaps happening. I can easily conceive of a coal station converting to gas, particularly if carbon sequestration were found to be uneconomic and not to work. You would then immediately halve the emissions for the same amount of power generated. Doing that on an existing site with connections to the grid and everything else might make extremely good sense in those circumstances. We thought that the Bill was too narrowly drafted and the definition ought to include a change of fuel used without referring to one particular type of fuel or another, which subsection (2) does at the moment. I hope that the Government will agree that that is a more sensible way of approaching the issue.
	Amendment No. 159 goes back to what a nationally significant infrastructure project is. If work relates to a minor national infrastructure project which is none the less important and must still be done, how does one deal with the consent for that? It does not appear to be clear in the Bill how these matters will be treated. If one has a major national power station and some enhancement suddenly becomes either desirable or necessary, and that has to go through the local planning system, there might be some interesting consequences as a result of the time spent getting such matters dealt with. We must think about that.
	I admit that I find it odd that Amendment No. 395 was added to this group but, since it has been, we may as well get it out of the way. The measuring and marking out of land is an offence under the Bill if it is done without consent. We thought that we ought to find out precisely why that is so. The measuring and marking out of land does not do a great deal of damage to land. I entirely agree that it ought only to be done with consent; that would be normal politeness and everything else. However, I should think that every Member of the Committee has had the awkward but not at all unusual experience of notifications of things that have completely gone astray.
	The perpetrator of this disaster, from the point of view of the recipient, usually has no knowledge that that is the situation. We must think about that. Somebody may well give somebody notice in writing that he intends, because of the terms of his consent, to go on to and start marking it out on a particular date. That notice may well not arrive at the other end, such is the reliability of the modern postal service. Of course there are other means of communication—telephones, e-mail and all the rest—but the accepted method of communication for this sort of thing is a written notice. Sadly, they do not always arrive. We ought to have a little discussion of that topic. It would be an offence in that instance, but once through inadvertence not of one's own creation.

Lord Adonis: I shall first deal with Amendments Nos. 156 and 162 of the noble Baroness, Lady Hamwee, which probe why development consent will be required for development where the development only forms part of a nationally significant infrastructure project rather than being one in its own right. I reassure the noble Baroness that her amendment is not necessary. Clause 30 of the Bill is designed to regulate nationally significant infrastructure projects. To the extent that development is proposed as part of such a project, that development will require consent under the terms of the Bill. However, development that could be carried out separately, and which is not clearly part of a development NSIP, will continue to enjoy existing permitted development rights.
	Our overall policy aim is that the IPC will take on the role of examining and considering all aspects of an application that meets the definitions of a nationally significant infrastructure project. These definitions are set out in Part 3 and state clearly what scales of project will require development consent from the IPC. It is not our intention that promoters should be required to seek development consent for works which are not captured by these thresholds and which are not component parts of a greater project, by dint of them being judged as forming part of an NSIP. At the same time, however, we do not want to create a loophole that allows promoters to "salami slice" NSIP development into smaller chunks of work which could therefore slip under the thresholds.
	I should also clarify that we have no reason to believe that the wording of this clause will prejudice the ability of the promoter to carry out works which are below the thresholds through existing permitted development rights as long as these do not form part of an NSIP.
	In Amendment No. 157, the noble Lord, Lord Dixon-Smith, seeks to alter the wording of Clause 31(2)(a) to mean that the conversion of fuel sources in a power station should always be treated as a material change of use, and therefore require development consent under the Bill. I shall explain the background to this. The wording of Clause 31(2)(a) is intended to ensure that the provisions of Section 14(1) of the Energy Act 1976 are not lost. Under this Act, power station operators are required to seek consent from the Government before converting a power station to run from any power source, which generally, of course, means coal, to petroleum or gas, which was the example given by the noble Lord. The conversion of a power station to such a fuel source may not in itself be "development" within the normal definitions, and so were it not for this clause such works might not require development consent from the IPC. However, the conversion of existing power stations to use forms of fuel other than those contained in Clause 31(2)(a) would be extremely likely to require construction and other works, which would mean that it automatically counts as development under the Bill. For this reason we believe that Amendment No. 157 is unnecessary. However, if the noble Lord can provide me with any concrete examples to the contrary I shall, of course, look at them to see whether further amendment is necessary.
	Amendment No. 159 seeks to add a new category to subsection (3), to expand the definition of "development" to cover any works that are relevant to an NSIP. This is intended to cover the kind of works that would not otherwise constitute development; for example, internal building works. However, we believe there is a risk that this amendment would introduce real uncertainty as to the meaning of,
	"works carried out under Clause 14",
	and therefore create confusion as to the range of matters requiring development consent. No works are carried out under Clause 14, as this clause simply sets out definitions for what constitutes a nationally significant infrastructure project. By including these matters within the definition of development, this amendment would create uncertainty and confusion as to the range of matters requiring development consent under Clause 30, which would have completely the opposite effect of what this Bill seeks to achieve.
	The noble Lord's Amendment No. 395 is intended to ensure that a person does not commit an offence under the enforcement clauses of the Bill if he is only measuring and marking out land. We believe that this amendment is unnecessary. As I understand it, the noble Lord is concerned to avoid the situation whereby an offence under Clauses 153 or 154 could be triggered by a person simply measuring up or marking out land. I understand that underlying this concern is case law that has developed around the meaning of when development is commenced for the purposes of Section 56 of the Town and Country Planning Act 1990. The courts have held that in some circumstances preliminary works can be material operations for the purposes of Section 56. However, for the purposes of the offences created by Clauses 153 and 154 of this Bill, the relevant question is not whether development has commenced, but whether a person has carried out development for which development consent is required, or whether he has carried out works in breach of the terms of a development consent order. To understand this fully, it is necessary to refer to Clause 30, which says that,
	"("development consent") is required for development to the extent that the development is or forms part of a nationally significant infrastructure project".
	We do not consider that the measuring up or marking out of land by itself could ever conceivably amount to development forming part of a nationally significant infrastructure project.
	It only remains for me to move Government Amendments Nos. 160 and 161, which are purely drafting points intended to clarify the workings of Clause 33. However, I can explain them fully if noble Lords wish.

Baroness Hamwee: I will read what the Minister said. One point, which I was trying to write down, seemed circular; I am sure that it was not. Regarding the provenance of my first amendment, I wish I had realised that the Law Society had proposed it, because then I could have checked its notes rather than agonising about what I meant. I am sure that it was a good idea at the time, but it is not necessarily that obvious when one gets to midnight on a Committee day. I am grateful for the explanation, which I will read. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 30 agreed to.
	Clause 31 [Meaning of "development"]:
	[Amendments Nos. 157 to 159 not moved.]
	Clause 31 agreed to.
	Clause 32 agreed to.
	Clause 33 [Welsh offshore generating stations]:

Lord Adonis: moved Amendments Nos. 160 and 161:
	Clause 33, page 21, line 14, leave out "being made in relation to" and insert "authorising"
	Clause 33, page 21, line 20, leave out "is made in relation to" and insert "authorises"
	On Question, amendments agreed to.
	Clause 33, as amended, agreed to.
	Clause 34 [Direction in relation to projects of national significance]:
	[Amendment No. 162 not moved.]

Lord Reay: moved Amendment No. 163:
	Clause 34, page 21, line 32, leave out paragraph (d)

Lord Reay: There seems to be no theme uniting this group of amendments as far as I can see. It seems to be a bureaucratic grouping, which I do not object to at all, but I shall speak only to my amendment, which deletes Clause 34(1)(d). This subsection concerns me because it appears to give the opportunity to the Secretary of State to lump together several projects. When none of them singly would be able to be categorised as a project of national significance, he can apparently lump them together and so decide that they become a project of national significance.
	For example, it would appear that the Secretary of State might be able to decide that a group of wind farms which were individually beneath the threshold could be considered together and would become a nationally significant project. They would have nothing in common with each other at all; there is certainly nothing here to require anything that links the projects. They would be schemes by different developers and they could be started at different times and subject to different local authorities, with absolutely nothing in common to justify them being put together except that the Secretary of State has, apparently, the unfettered discretion to decide that they should be considered together. I should be grateful if the noble Lord could explain whether that is the intention of the subsection and, if it is not, whether it could be the effect of that subsection. I beg to move.

Baroness Pitkeathley: I should tell the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 164 or 165 for reasons of pre-emption.

Lord Dixon-Smith: My Amendment No. 164 is grouped with Amendment No. 163. It was really prompted by curiosity and by the drafting of Clause 34, which is quite interesting. Clause 34(1) says:
	"This section applies if ... an application for a consent ... in relation to development".
	Paragraph (b) starts with the words "the development is" and paragraph (c) says "the development will". Then paragraph (d), for some reason, states,
	"the Secretary of State thinks that the project is of national significance".
	I fail to understand why paragraphs (a), (b) and (c) refer to "development", then, suddenly, the Secretary of State is thinking about a "project". There may be a rational reason for that, but I admit that I had some difficulty in thinking what it could be. I thought that the only way to find out what was in the Secretary of State's mind was to invite the Minister to say why "project" is used when the rest of Clause 34(1) refers to "development".

Baroness Hamwee: I have Amendments Nos. 165, 167 and 168 in this group. On Amendment No. 165, I share the concern of the noble Lord, Lord Reay. When the notion of covering more than a single field in this provision was introduced in the Commons, it was said that it would clarify drafting. I think I know the answer, but perhaps the Minister can clarify the position for me. Is a single application possible across more than one field? I think that the answer is "yes".
	Amendment No. 166 represents perhaps an obscure way of probing. I sent the question to the office of the noble Baroness, Lady Andrews, and I hope that it is not so obscure as to be impossible to answer. I suggested taking out,
	"for specified purposes or generally",
	because I do not understand the difference between paragraphs (a) and (b) in subsection (4). I have asked for the distinction to be explained.
	On Amendments Nos. 167 and 168, in the Commons the Minister said that the power would be used only in rare circumstances and on the basis of clear criteria. I think that he was referring to this matter. It would be clearer if any future applicable legislation contained the provisions, rather than trying to anticipate them now. More importantly, it would be more appropriate if the Secretary of State did not have the power to make a modification or treat a provision as having been complied with. That strikes me as a significant power, given rather casually to the Secretary of State.

Lord Adonis: We are on the last lap—for tonight. I begin with the issue raised by the noble Lord, Lord Reay, on Clause 34(1)(d), which allows the Secretary of State to direct either individual sub-threshold projects or a group or cluster of such projects to the IPC. In the case of a cluster of projects, referral to the IPC can be made on the basis that the projects, when considered together, are of national significance. This reflects the cumulative impact that such clusters of projects can have on an area. For example, a series of proposed offshore wind farms in a similar area might be below the 100 megawatt limit individually, but above the limit when taken together.
	In response to the opening comments of the noble Lord, Lord Reay, we expect that the ministerial power of direction in this area would be exercised on the basis of clear criteria set out in a ministerial Statement, or possibly in the NPS itself. We would expect this power to be used comparatively rarely, to deal with circumstances which we would not be able to predict, such as changing technology, changing sectoral circumstances or situations where several projects come forward in close proximity such that they are likely to have cumulative impacts that require holistic consideration.
	Amendment No. 164, in the name of the noble Lord, Lord Dixon-Smith, seeks to alter Clause 34(1)(d) so that the Secretary of State can direct a project to the IPC only if he believes that the "development" is of national significance, rather than if he believes the "project" is of national significance. Perhaps I should explain why we have used "project" in Clause 34.
	The meaning of "development" in the Bill, as set out in Clause 31, is the same as in the Town and Country Planning Act, albeit with some modifications—that is, it relates specifically to physical and engineering works, such as construction, demolition and digging, and to material changes in the use of land. The reference to a "project" as opposed to a "development" is used in Clause 34 to permit the Secretary of State to take a wider view of various aspects of development work involved in a project when deciding whether it is of national significance. Therefore, we have used "project" to cover planned and linked pieces of development, and the Bill is chiefly interested in whether a project taken as a whole is of national significance.
	Subsection (1)(d) relates to where a series of individual projects might be envisaged—perhaps promoted by different companies—but where the projects involve similar types of development work and are perhaps within close geographical proximity to one another. In such circumstances, the cumulative effect of these individual projects could exceed the thresholds of an NSIP, and we intend that it should be possible for the Secretary of State to conclude that the projects, taken together, are of national significance. Where a series of related applications or proposed applications clearly form a single project, Clause 34(1)(b) already achieves that result. In other cases, it might not always be possible to view the applications as part of a single project, and these separate projects could be directed to the IPC only through the wording that we have provided in Clause 34(1)(d).
	I turn to the amendments in the name of the noble Baroness, Lady Hamwee. She will be pleased to hear that we believe that there may well be merit in her Amendment No. 165, which would ensure that the Secretary of State could direct a series of projects to the IPC only if they were within the same field—such as all being energy projects or transport projects and so on. We think that the noble Baroness raises a valid point in this area and, if she would be content not to move the amendment at this stage, we should be glad to discuss it with her further before Report to see whether some change is appropriate.
	I fear that I cannot be quite so forthcoming on Amendments Nos. 167 and 168. In this context, it may be helpful to outline our intentions for subsections (4) and (5). We want to avoid the situation where the direction of an application to the IPC has unintended consequences, and we want to prevent a promoter having to restart the consent process for a project from square one if the Secretary of State directs an application to the IPC. For example, the Secretary of State might want to ensure that the pre-application consultation requirements apply in modified form to the application in question, or the Secretary of State might want to direct that certain procedures—for example, pre-application procedures—are treated as having been complied with in relation to that application. We believe that this would be justifiable to ensure that the promoter was not penalised because the Secretary of State ruled, relatively late in the process, that the application was of national significance.
	Amendment No. 166 asks whether the power of the Secretary of State in subsection (4) applies,
	"for specified purposes or generally".
	For the reasons I have already given, we believe that this wording is needed in order to allow the Secretary of State flexibility to vary the effect of a direction of a project to the IPC. On that note, I hope that I have dealt with most of the matters raised.

Lord Reay: I am grateful to the noble Lord for his reply, which I shall study carefully. He mentioned the possibility that this power could be used in the case of offshore wind farms that individually fell below the threshold. Will he say—if not immediately, then in writing—whether the Government can envisage that power being used in the case of onshore wind farms?

Lord Adonis: I shall deal with that point in correspondence if the noble Lord will permit me.

Lord Reay: I thank the Minister, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 164 to 168 not moved.]
	Clause 34 agreed to.

Lord Patel of Bradford: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at 12.35 am.